Burrell v. Bishop et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Ako K. Burrell
Plaintiff,
v. 	9:23-CV-0098
(MJK)
Bishop, et. al.
Defendants.
_____________________________________________________________________
Ako K. Burrell, Plaintiff, pro se
Jennifer J. Corcoran Esq., Asst. Attorney General for Defendants
Mitchell J. Katz, United States Magistrate Judge
MEMORANDUM-DECSION AND ORDER
In this pro se civil rights action, Burrell alleges that Defendants
violated his constitutional rights in December 2022 while incarcerated
at Upstate C.F. See (generally Complaint (“Compl.),” Dkt. 1). Currently
before the Court is Defendants’ motion for summary judgment under
Fed. R. Civ. P. 56. (Dkts. 122, 133). Burell opposes the motion. (Dkt.
130). Burrell consented to the jurisdiction of a Magistrate Judge. (Dkt.
32). For the following reasons, Defendants’ motion for summary
judgment is granted in part and denied in part.
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I. 	BACKGROUND
A. Facts
The parties are fully familiar with the facts underlying Burrell’s
claims which the Court will refer to as necessary in its analysis of
Defendants’ motion.
B. Procedural History
Burrell commenced this action on January 25, 2023 by filing a
Complaint and moving for leave to proceed in forma pauperis. (Dkts. 1,
2).
By Decision and Order dated March 7, 2023, Senior United States
District Court Judge David N. Hurd granted Burrell’s request to
proceed in forma pauperis, reviewed the Complaint under 28 U.S.C.
§1915 and dismissed the following claims without prejudice: (i) Eighth
Amendment condition-of-confinement claims against Defendants Nurse
Doe 2, Taylor, and Lebarge; (ii) Eighth Amendment condition-of-
confinement claims related to deprivation orders; (iii) Fourteenth
Amendment due process claims; (iv) First Amendment access-to-court
claims; and (v) First Amendment retaliation claims against Defendants
Locke, Conto, Burroughs, Bruemelle, and Taylor. (Dkt. 5, at 29).
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Senior Judge Hurd ruled that the following claims survived the
Court’s initial review and required a response: (i) Eighth Amendment
excessive force and failure-to-intervene claims against Defendants
Bishop, Locke, Gary, Plonka, Ditullio, Durant, Menard, Martindale,
Bonesteel, Bugavey, Marshton, Chontosh, and Hart; (ii) Eighth
Amendment deliberate medical indifference claims against Defendants
Dumas, Nurse Doe, Hart, Holcombe, Dr. Doe, and Surgeon Doe;
(iii) Eighth Amendment condition-of-confinement claims against
Defendants Mitchell, Durant, and Hastings; and (iv) First Amendment
retaliation claims against Defendants Menard, Durant, Ditullio, Hart,
Mitchell, Nurse Doe, Bonesteel, Martindale, Gary, Bugavey, Conto,
Richter, Plonka, Marshton, Chontosh, Dumas, Cook, Martin, Bishop,
Hastings, Bullock, Taylor. (Dkt. 5, at 29-30).
Defendants filed their Answer on September 22, 2023. (Dkt. 26).
On April 12, 2024, the Court issued a text order (Dkt. 65) denying,
as untimely, Burrell’s letter request (Dkt. 64) to amend the Complaint.
Defendants now move for summary judgment, arguing that:
(i) Burrell did not exhaust the administrative remedies available to him
prior to commencing this action; and (ii) even if Burrell did exhaust his
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administrative remedies, the Complaint should nevertheless be
dismissed because Burrell’s constitutional claims do not raise any
issues of fact. (Dkt. 122-2).
The Court heard oral argument on January 28, 2026.
II. 	STANDARD OF REVIEW
A. Summary Judgment
“Summary Judgment is appropriate only if the movant shows that
there is no genuine issue as to any material fact.” Tolan v. Cotton, 572
U.S. 650, 656-57 (2014) (cleaned up). When deciding if there is a
genuine issue of material fact, courts “must view the evidence in the
light most favorable” to the non-moving party. Id. at 656 (cleaned up).
Likewise, courts must “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party opposing
summary judgment.” Kessler v. Westchester County Dep’t of Social
Services, 461 F.3d 199, 206 (2d Cir. 2006). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“The moving party bears the initial burden of showing that there
is no genuine dispute as to a material fact.” CILP Assocs., L.P. v.
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Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013). “When
the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec., 475 U.S. at 586. “The
nonmoving party may not rely on mere conclusory allegations nor
speculation but instead must offer some hard evidence showing that its
version of the events is not wholly fanciful.” D’Amico v. City of New
York, 132 F.3d 145,149 (2d Cir. 1998) (cleaned up).
“If the defendant in a run-of-the-mill civil case moves for summary
judgment,” judges “must ask” themselves “not whether” they “think the
evidence unmistakably favors one side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence
presented. The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). “A court cannot credit a plaintiff’s
merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d
226, 230 (2d Cir. 2012).
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III. GENERALLY APPLICABLE LAW
Section 1983 establishes a cause of action for “the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws of the United States.” German v. Fed. Home Loan Mortg. Corp.,
885 F. Supp. 537, 573 (S.D.N.Y. 1995) (cleaned up). “Section 1983 itself
creates no substantive rights, it only creates “a procedure for redress for
the deprivation of rights established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993) (citation omitted). “To establish a
defendant's individual liability in a suit brought under Section 1983, a
plaintiff must show “the defendant’s personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720
F.3d 133, 138 (2d Cir. 2013) (cleaned up).
IV. 	DISCUSSION
The Court: (i) grants in part and denies in part Defendants’
motion for summary judgment; (ii) adopts Defendants’ Statement of
Material Fact (“SOMF”) as true because it is supported by the record;
(iii) finds that there is a question of fact as to whether Burrell
exhausted his administrative remedies regarding his December 10,
2022 First Amendment retaliation claim against Defendants Menard,
Durant, Ditullio and Hart; (iv) finds even though there is a question of
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fact as to whether Burrell exhausted his administrative remedies
regarding his December 10, 2022 First Amendment retaliation claim,
there are no issues of fact precluding granting Defendants summary
judgment on the substantive claim; (v) finds that Burrell exhausted his
administrative remedies regarding his Eighth Amendment excessive
force claim against Defendants Ditullio and Locke for allegedly
inserting a pen in his anus; and (vi) finds that there is an issue of fact
as to who inserted the pen in Burrell’s anus.
A. 	The Court adopts Defendants’ SOMF as true because
Burrell failed to comply with Local Rule 56.1(b) and it
is well supported by the record.
The Court adopts Defendants’ SOMF as true. Pro se litigants are
notified that the failure to comply with the Northern District’s local
rules can result in the adoption of their opposition’s SOMF if the SOMF
is well supported. Here, Burrell did not comply with Local Rule 56.1(b)
and Defendants’ SOMF is well supported.
“While courts are required to give due deference to a plaintiff’s pro
se status, that status ‘does not relieve plaintiff of his duty to meet the
requirements necessary to defeat a motion for summary judgment.’”
Jackson v. Moore, No. 9:21-CV-1001 (GTS/ATB), 2023 WL 4710869, at
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*2 (N.D.N.Y. Apr. 14, 2023) (quoting Jorgensen v. Epic/Sony Records,
351 F.3d 46, 50 (2d Cir. 2003)), report and recommendation adopted,
2023 WL 4711091 (N.D.N.Y. July 24, 2023). “Where a party has failed
to respond to the movant’s statement of material facts as required by
Local Rule 7.1(a)(3), the facts in the movant’s statement will be
accepted as true (1) to the extent they are supported by evidence in the
record, and (2) the non-movant, if proceeding pro se, has been
specifically advised of the possible consequences of failing to respond to
the motion.” Id. (citing Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.
1996)).
Accordingly, when a party moves for summary judgment against a
pro se litigant, either the movant or the district court must provide the
pro se litigant with notice of the consequences of failing to respond to
the motion. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.
1999). Courts in this district have routinely held that when such notice
is provided and a pro se plaintiff fails to respond to a motion for
summary judgment, the court may accept the defendant’s factual
assertions as true to the extent they are supported by the evidence in
the record. See, Jackson, 2023 WL 4710869 at *2; see also Price v.
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Oropallo, 9:13-CV-563 (GTS/TWD), 2014 WL 4146276, at *5 (N.D.N.Y.
Aug. 2014) (“An unopposed summary judgment motion may properly be
granted only if the facts as to which there is no genuine dispute show
that the moving party is entitled to judgment as a matter of law.”)
(cleaned up).1
Burrell failed to comply with Local Rule 56.1(b). On May 29, 2025,
Defendants served Burrell with their motion for summary judgment
and a Notification of Consequences of Failing to Respond to a Summary
Judgment Motion. (Dkts. 122, 124). Although Burrell responded to the
motion, his response to Defendants’ SOMF fails to comply with Local
Rule 56.1(b) because he did not cite to the record to support his denials
of Defendants’ factual assertions. See (Dkt. 130); see also Lee v. City of
Troy, 520 F. Supp. 3d 191, 198 (N.D.N.Y. 2021) (“Because a naked
denial of a fact the movant claims to be undisputed would do little to
help the Court, the opposing party must support every denial with a
citation to record evidence supporting a genuine dispute of material
1 In Burrell v. Global Tel Link, et al., No. 9:24-cv-1377 (BKS/TWD) (N.D.N.Y. Dec.
23, 2024), Chief United States District Judge Brenda K. Sannes revoked Burrell’s
special status as a pro se civil rights litigant.
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fact.”). The Court therefore deems Defendants’ SOMF admitted because
it is properly supported by the record. 	See Local Rule 56.1(b).
B. Defendants are entitled to summary judgment on the
issue of exhaustion as to some of Burrell’s remaining
claims.
Based on the record before it, the Court grants Defendants
summary judgment on the issue of exhaustion on all remaining claims
except as follows - the Court finds that: (i) there are questions of fact as
to whether Burell exhausted his administrative remedies regarding his
December 10, 2022 First Amendment retaliation claim against
Defendants Menard, Durant, Ditullio and Hart, and (ii) Burrell
exhausted his administrative remedies regarding his Eighth
Amendment excessive force claim as to a pen having been inserted in
his anus.
The Prison Litigation Reform Act (PLRA) governs federal civil
rights litigation by inmates. Under the PLRA, “no action shall be
brought with respect to prison conditions under § 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a) (cleaned up). “The
PLRA’s exhaustion requirement applies to all inmate suits about prison
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life, whether they involve general circumstances or particular episodes.”
Porter v. Nussle, 534 U.S. 516, 532 (2002) (cleaned up). “Exhaustion is
mandatory—unexhausted claims may not be pursued in federal court.”
Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (citations omitted).
To exhaust administrative remedies, an incarcerated individual must
complete all the administrative review procedures according to the rules
applicable to the institution in which they are confined. See Jones v.
Bock, 549 U.S. 199, 218 (2007). “Untimely or otherwise procedurally
defective attempts to secure administrative remedies do not satisfy the
PLRA’s exhaustion requirement.” Ruggiero v. County of Orange, 467
F.3d 170, 176 (2d Cir. 2006) (cleaned up).
The PLRA’s exhaustion requirement does not apply if the remedy is
functionally unavailable to the incarcerated individual. See Ross v. Blake,
578 U.S. 632, 642 (2016). There are three “circumstances in which an
administrative remedy, although officially on the books, is not capable of
use to obtain relief.” Id. at 643.
First, “an administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it operates as a
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simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates.” Id. (citation omitted).
Second, “an administrative scheme” is unavailable, when it is “so
opaque that it becomes, practically speaking, incapable of use.” Id. at
643-644. “When an administrative process is susceptible of multiple
reasonable interpretations” the incarcerated individual “should err on
the side of exhaustion.” Id. at 644. “But when a remedy is . . .
essentially ‘unknowable’ —so that no ordinary prisoner can make sense
of what it demands—then it is also unavailable.” Id. (citation omitted).
Third, an administrative procedure is unavailable when “prison
administrators thwart” incarcerated persons “from taking advantage of
a grievance process through machination, misrepresentation, or
intimidation.” Id.
DOCCS has a three-step-grievance process. Step one requires an
incarcerated individual to file a complaint with the facility’s
incarcerated grievance program clerk within 21 days of the alleged
event. 7 N.Y.C.R.R § 701.5(a). The Incarcerated Grievance Review
Committee reviews the complaint, investigates the allegations, and
then issues a written determination. 7 N.Y.C.R.R § 701.5(b)(1). At step
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two of the grievance process, the incarcerated person may appeal the
Committee’s determination to the facility’s superintendent. 7 N.Y.C.R.R
§ 701.5(c). On appeal, the superintendent reviews the Committee’s
decision and issues their own decision. Id. At the third step, an
incarcerated individual may appeal the superintendent’s decision to the
Central Office Review Committee (“CORC”) for a final administrative
determination. 7 N.Y.C.R.R § 701.5(d).
1. Burrell’s Claims and Corresponding Grievances
Below is a listing of Burrell’s surviving claims as determined by
Senior Judge Hurd and the corresponding grievance history regarding
those claims reflected in the documentary evidence submitted by
Defendants in support of their summary judgment motion.2
A. First Amendment Retaliation Claims
i. 	On December 10, 2022, Defendants Menard, Durant,
Ditullio and Hart removed Burrell’s mattress, sheets,
blankets, towels, washcloths and paper because he would not
withdraw his claims against Defendant Ditullio in a separate
lawsuit. (Dkt. 122-2, Def. Mem. of Law, pg. 3, at ¶ 1).
2 Burell’s response includes four of the five grievances included in Defendants’
moving papers: USR-2541-22; UST-2545-22, UST-2538-22; and UST-2537-22.
Significantly, the fifth grievance that Burrell includes, UST-2409-22, is for a time
period prior to the dates at issue in this case. (Dkt. 130, pg. 17).
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The Court finds that there is an issue of fact as to whether Burrell
exhausted his administrative remedies regarding this claim. The record
is ambiguous as to which, if any of Burrell’s five grievances offered by
Defendants in their motion papers, is applicable to this First
Amendment claim. During oral argument on January 28, 2026,
Defendants’ counsel confirmed the ambiguity, conceding that either
grievance UST-2537-22 or grievance UST-2545-22 could be applicable
to this particular claim. The Court therefore denies Defendants’ motion
for summary judgment with respect to the issue of exhaustion of this
First Amendment claim. See Kessler, 461 F.3d at 206.
However, the presence of an issue of fact whether Burrell
exhausted this First Amendment claim is not necessarily fatal to
Defendants’ motion for summary judgment on this claim. If the Court
determines that there are no genuine issues of material fact as to the
underlying First Amendment claim, Defendants will be granted
summary judgment and the claim will be dismissed.
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ii. 	Between December 10, 2022 and December 12, 2022, Burrell
claims that Defendants Mitchell and Durant denied him nine
(9) meals because he refused to withdraw claims against
Defendants Locke and Ditullio. (Dkt. 122-2, Def. Mem. of
Law, pg. 4, at ¶ 2).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
iii. 	On December 13, 2022, Defendant Bonesteel assaulted
Burrell when Burrell confirmed that Defendant Bonesteel
was the John Doe Defendant in a separate lawsuit. (Dkt. 122-
2, Def. Mem. of Law, pg. 4, at ¶ 3).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
iv. 	On December 13, 2022, Defendants Martindale, Gary and
Bugavey assaulted Burrell during transport to/from the
hospital because Burrell would not drop a separate lawsuit.
(Dkt. 122-2, Def. Mem. of Law, pg. 3, at ¶ 4).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
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v. 	On December 15, 2022, Defendants Conto and Richter issued
a contraband watch against Burrell because Burrell refused
to withdraw a separate lawsuit. (Dkt. 122-2, Def. Mem. of
Law, pg. 4, at ¶ 5).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
vi. 	On December 15, 2022, Defendants Plonka, Marston and
Chontosh assaulted Burrell because Burrell would not
withdraw a separate lawsuit. (Dkt. 122, Def. Mem. of Law,
pg. 4, at ¶ 6).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
vii. 	On December 15, 2022, Defendants Dumas and Hart refused
to provide medical attention to Burrell because Burrell sued
Defendant Dumas and non-party Blackburn in a separate
lawsuit. (Dkt. 122-2, Def. Mem. of Law, pg. 4, at ¶ 7).
Burrell did not file a grievance specific to these allegations.
However, on December 21, 2022, Burrell authored grievance
UST-2544-22 regarding medical care which named Defendant Hart.
Grievance UST-2544-22 was filed on December 27, 2022 and denied on
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January 12, 2023. The denial was affirmed by the Superintendent on
February 3, 2023 and Burrell appealed to CORC on February 8, 2023.
Burrell’s appeal to CORC was filed after the Complaint in this action
was filed. (Dkt. 122-1, Def. SOMF, ¶ 24(C). Because Burrell did not
properly respond to Defendants’ SOMF, this fact is deemed admitted.
Burrell did not file a grievance or an appeal of a grievance as to
Defendant Dumas. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part “1,”
pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
viii. 	On December 15, 2022, Defendants Cook, Martin, Plonka and
Bishop placed Burrell on a suicide watch because Burrell
tried to sue Defendant Cook and would not withdraw a
separate lawsuit. (Dkt. 122-2, Def. Mem. of Law, pg. 4, at ¶
8).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
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ix. 	Between December 15, 2022 and December 19, 2022,
Defendant Hastings refused to provide Burrell with meals, a
mattress and a blanket because Burrell tried to sue
Defendant Hastings. (Dkt. 122-2, Def. Mem. of Law, pg. 4, at
¶ 9).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
x. 	On December 21, 2022, Defendants Bullock and Taylor
issued Burrell a false misbehavior report because of a prior
lawsuit Burrell filed. (Dkt. 122-2, Def. Mem. of Law, pg. 4, at
¶ 10).
On December 26, 2022, Burrell authored grievance #2538-22
which was received on December 27, 2022. (Dkt. 122-4, pg. 135). The
grievance was denied by the Superintendent on January 10, 2023 (Dkt.
122-4, pg. 136) which Burrell appealed to CORC on January 19, 2023
(Id.). CORC received Burrell’s appeal after the Complaint was filed.
(Dkt. 122-1, Def. SOMF, ¶ 24(B); Dkt. 122-5, pg. 170).
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xi. 	On December 22, 2022, Bishop directed Defendants Marston
and Menard to assault Burrell because Burrell would not
withdraw a prior lawsuit. (Dkt. 122-2, Def. Mem. of Law, pg.
5, at ¶ 11).
On December 26, 2022, Burrell authored grievance #2541-22
which was received on December 27, 2022. (Dkt. 122-4, pg. 143). The
Superintendent’s affirmance of the denial was issued after the
Complaint was filed. (Dkt. 122-1, Def. SOMF, ¶ 24(C); Dkt. 122-4, pg.
144). Burrell never appealed to CORC. (Dkt. 122-1, Def. SOMF, ¶ 24(C);
Dkt. 122-5, pgs. 169-176 ). Because Burrell did not properly respond to
Defendants’ SOMF, this fact is deemed admitted.
xii. 	On December 23, 2022, Defendant Bishop directed
Defendants Marston and Durant to assault Burrell because
Burrell would not withdraw a prior lawsuit. (Dkt. 122-2, Def.
Mem. of Law, pg. 16, ¶ 12).
On December 26, 2022, Burrell authored grievance #2541-22
which was received on December 27, 2022. (Dkt. 122-4, pg. 143). The
Superintendent’s affirmance of the denial was issued after the
Complaint was filed. (Dkt. 122-1, Def. SOMF, ¶ 24(C); Dkt. 122-4, pg.
144). Burrell never appealed to CORC. (Dkt. 122-1, Def. SOMF, ¶ 24(C);
Dkt. 122-5, pgs. 169-176 ). Because Burrell did not properly respond to
Defendants’ SOMF, this fact is deemed admitted.
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B. Eighth Amendment Conditions of Confinement
i. 	Between December 10, 2022 and December 12, 2022,
Defendants Mitchell and Durant denied Burrell nine (9) meals.
(Dkt, 122-2, Def. Mem. of Law, pg. 18).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
ii. 	Between December 15, 2022 and December 19, 2022, Defendant
Hastings denied Burrell meals. (Dkt, 122-2, Def. Mem. of Law,
pg. 18).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
C. Eighth Amendment Deliberate Medical Indifference
i. 	On December 15, 2022, Defendant Dumas refused Burrell’s
request for medical treatment after he was assaulted by staff.
(Dkt, 122-2, Def. Mem. of Law, pg. 18).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
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ii. 	On December 13, 2022 Defendant Hart denied Burrell medical
treatment when Burrell complained that he had a pen in his
anus and again denied Burrell medical treatment on December
15, 2022 after he was assaulted by staff. Dkt, 122-2, Def. Mem.
of Law, pg. 18).
Burrell did not file a grievance specific to these allegations.
However, on December 21, 2022, Burrell authored grievance UST-2544-
22 regarding medical care which named Defendant Hart. Grievance
UST-2544-22 was filed on December 27, 2022 and denied on January
12, 2023. The denial was affirmed by the Superintendent on February
3, 2023 and Burrell appealed to CORC on February 8, 2023. Burrell’s
appeal to CORC was filed after the Complaint in this action was filed.
(Dkt. 122-1, Def. SOMF, ¶ 24(D); Dkt. 122-4, pgs. 151-54). Because
Burrell did not properly respond to Defendants’ SOMF, this fact is
deemed admitted.
iii. 	On December 12, 2022, Defendant Holcombe refused to
process Burrell’s sick call request. (Dkt, 122-2, Def. Mem. of
Law, pg. 18).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
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D. Eighth Amendment Excessive Force and Failure to
Intervene
i. 	On December 22, 2022 and December 23, 2022, Bishop directs
officers to assault Burrell. (Dkt, 122-2, Def. Mem. of Law, pgs.
18-19),
On December 26, 2022, Burrell authored grievance #2541-22
which was received on December 27, 2022. (Dkt. 122-4, pg. 143). The
Superintendent’s affirmance of the denial was issued after the
Complaint was filed. (Dkt. 122-1, Def. SOMF, ¶ 24(C); Dkt. 122-4, pg.
144). Because Burrell did not properly respond to Defendants’ SOMF,
this fact is deemed admitted.
ii. 	On December 10, 2022 Defendants Locke and Ditullio
inserted a pen in Burrell’s anus. (Dkt, 122-2, Def. Mem. of
Law, pg. 19).
Defendants maintain that Burrell failed to exhaust his
administrative remedies relative to this claim. They argue that
“[Burrell] filed no grievance(s) with regard to the alleged assault, with
the exception of a PREA complaint relative to the alleged placement of a
pen in his anus.” (Dkt. 122-2, Defs. Mem. of Law, pg. 34)(emphasis
added). Defendants’ argument is misguided because Burrell’s filing of a
PREA claim was his avenue for exhausting his administrative
remedies. Directive 4040, § 701.3(i) provides in relevant part:
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(i) Sexual abuse and sexual harassment complaints. The
department has zero tolerance for sexual abuse and sexual
harassment. Consistent with this policy and the Prison Rape
Elimination Act (PREA) Standards (28 C.F.R. § 115.52(a)),
an inmate is not required to file a grievance concerning an
alleged incident of sexual abuse or sexual harassment to
satisfy the Prison Litigation Reform Act (PLRA) exhaustion
requirement (42 U.S.C. § 1997e(a)) before bringing a lawsuit
regarding an allegation of sexual abuse as long as the matter
was reported as set forth below. For purposes of the Prison
Rape Elimination Act (PREA) Standards (28 C.F.R. § 115.52)
and the exhaustion requirement, any allegation concerning
an incident of sexual abuse or sexual harassment … shall be
deemed exhausted if official documentation confirms that:
(1) an inmate who alleges being the victim of sexual
abuse or sexual harassment reported the incident to
facility staff; in writing to Central Office Staff; to any
outside agency that the department has identified as
having agreed to receive and immediately forward
inmate reports of sexual abuse and sexual harassment
to agency officials under the PREA Standards (28
C.F.R. § 115.51(b)); or to the department's Office of the
Inspector General; or
(2) a third party reported that an inmate is the victim
of sexual abuse and the alleged victim confirmed the
allegation upon investigation …
Defendants concede that Burrell filed a PREA claim (Dkt. 122-1,
Def. SOMF, ¶ 4) and a copy of the February 6, 2024 final report issued
by the DOCCS Office of Special Investigations regarding Burrell’s
PREA claim is attached as Exhibit “B” to the Corcoran Declaration
(Dkt. 122-6).
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Because Burrell exhausted his administrative remedies by filing a
PREA claim, Defendants’ motion for summary judgment regarding
exhaustion on this issue is denied. The Court will, however,
substantively analyze Burrell’s Eighth Amendment excessive force
claim below to determine whether Defendants are nevertheless entitled
to summary judgment on this claim.
iii. 	On December 13, 2022, Defendant Gary assaulted Burrell at
the hospital and watched Defendants Bonesteel and
Martindale assault Burrell in the transport van and watches
Defendant Martindale assault Plaintiff in the transport van.
(Dkt, 122-2, Def. Mem. of Law, pg. 19).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
iv. 	On December 15, 2022, Defendant Plonka assaulted Burrell by
pushing his face into a wall. (Dkt, 122-2, Def. Mem. of Law, pg.
19).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
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v. 	On December 10, 2022, Defendant Ditullio placed a stick
around Burrell’s neck and lifted him off the ground and,
together with Defendant Locke, inserted a pen into his anus.
(Dkt, 122-2, Def. Mem. of Law, pg. 19).
Burrell did not file a grievance or an appeal to CORC regarding
the allegation that Ditullio placed a stick around Burrell’s neck and
lifted him off the ground. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). See Section D(ii) above regarding
Burrell’s claim that Defendants Locke and Ditullio inserted a pen into
his anus.
vi. 	On December 10, 2022, Defendant Durant physically
assaulted Burrell and watched Defendants Locke and Ditullio
insert a pen into Burrell’s anus. On December 23, 2022,
Durant punched, kicked and slapped Burrell over twenty (20)
times. (Dkt, 122-2, Def. Mem. of Law, pg. 19).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
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vii. 	On December 10, 2022, Defendant Menard physically
assaulted Burrell and watched Defendants Locke and Ditullio
insert a pen in his anus. On December 22, 2022, Defendant
Menard choked, punched and slapped Burrell in his head/face
and rammed his face into wall. (Dkt, 122-2, Def. Mem. of Law,
pgs. 19-20).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
viii. 	On December 13, 2022, Defendant Martindale choked Burrell
with a seatbelt and punched him in the face during transport
from Albany Medical Center back to Upstate C.F. (Dkt, 122-2,
Def. Mem. of Law, pg. 20).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
ix. 	On December 13, 2022, Defendant Bonesteel choked, punched
and slapped Burrell in the transport van on the way from
Upstate C.F. to the hospital. (Dkt, 122-2, Def. Mem. of Law,
pg. 20).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
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“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
x. 	On December 13, 2022, Defendant Bugavey watched
Defendant Bonesteel assault Burrell in the transport van, and
punched Burrell in the head and face and threatened to “mace
him” while at Alice Hyde Medical Center. (Dkt, 122-2, Def.
Mem. of Law, pg. 20).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
xi. 	On December 15, 2022 Defendant Marston slammed Burrell’s
face into a wall. On December 22, 2022, Defendant Marston
choked, punched and slapped Burrell in head and face and
rammed his face into wall. On December 23, 2022, Defendant
Marston punched, kicked and slapped Burrell more than
twenty (20) times. (Dkt, 122-2, Def. Mem. of Law, pg. 20).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
Regarding the December 22, 2022 and 23, 2022 allegations,
Burrell authored grievance #2541-22 on December 26, 2022 which was
received on December 27, 2022. (Dkt. 122-4, pg. 143). The
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Superintendent’s affirmance of the denial was issued after the
Complaint was filed. (Dkt. 122-4, pg. 144). Because the denial was
issued after the Complaint was filed, and because Burrell did not
properly respond to Defendants’ SOMF, the fact that he failed to
exhaust is deemed admitted.
xii. 	On December 15, 2022, Defendant Chontosh slammed
Burrell’s face into a wall. (Dkt, 122-2, Def. Mem. of Law, pg.
20).
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
xiii. 	On December 10, 2022, Defendant Hart physically assaulted
Burrell.
Burrell did not file a grievance related to this claim or an appeal
of a grievance to CORC. (Dkt. 122-4, Corcoran Decl., Exhibit “A”, Part
“1,” pg. 115, Part “2,” pgs. 169-176). Because Burrell did not properly
respond to Defendants’ SOMF, this fact is deemed admitted.
***
Other than as specifically noted above, the documentary evidence
offered by Defendants establishes that Burrell did not exhaust his
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administrative claims prior to commencing this action for one of the
following reasons:
(i) 	Burrell never filed a grievance in the first instance. See
Phipps v. Gillani, No. 9:10-CV-1588 (TJM/DEP), 2013 U.S.
Dist.LEXIS 132088, at *8 (N.D.N.Y. Jul. 23, 2013)
(summary judgment granted and complaint dismissed
where plaintiff did not file a grievance “addressing the
issues not raised in this action before commencing suit”); or
(ii) 	Burrell never appealed the Superintendent’s affirmance to
CORC. See Shabazz v. Bailey, No. 9:20-CV-0057
(LEK/TWD), 2023 WL 5779533, at *5 (N.D.N.Y. June 28,
2023) (“Plaintiff’s failure to appeal [his] grievance … to
CORC means Plaintiff failed to properly exhaust his
administrative remedies before filing this action.”), report
and recommendation adopted, 2023 WL 5622049 (N.D.N.Y.
Aug. 31, 2023); see also Arias v. Rice, No. 23-CV-6230, 2025
WL 1249556 (W.D.N.Y. Apr. 30, 2025) (Plaintiff failed to
exhaust where he did not seek review with CORC “for any
grievance related to this incident”); or
(iii) 	Burell commenced this action before receiving a response
from CORC regarding an appeal. See Animashaun v. Afify,
470 F. Supp. 3d 294, 296 (W.D.N.Y. 2020) (“a prisoner may
not file suit . . . before the time in which CORC is supposed
to issue a decision has expired.”); see also Bowie v. Woodruff,
No. 9:18-CV-0266 (BKS/ML), 2019 WL 7606078, at *5
(N.D.N.Y. Sept. 20, 2019) (holding that pro se inmate failed
to “fully exhaust his administrative remedies prior to filing
[his] lawsuit,” where CORC did not decide the plaintiff’s
administrative appeal until “approximately eight months
after [he] commenced [his federal] action.”), report and
recommendation adopted, 2019 WL 5445519 (N.D.N.Y. Oct.
23, 2019); Feliz v. Johnson, No. 9:17-CV-1294 (DNH/ATB),
2019 WL 3491232, at *2 (N.D.N.Y. Aug. 1, 2019) (holding
that the pro se inmate “did not fully exhaust his
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administrative remedies prior to commencing [his federal]
action because he filed his federal complaint before
completing the DOCCS grievance process,” where the
“plaintiff had not yet even appealed the relevant grievance
to CORC at the time of filing this action.”); White v. Drake,
No. 10-CV-1034 (GTS/DRH), 2011 WL 4478988, at *3
(N.D.N.Y. Aug. 11, 2011) (“Included within the IGP’s
exhaustion requirement is the prerequisite that the inmate
file an appeal with CORC and receive a response from
CORC prior to filing a federal lawsuit.” (citations omitted),
report and recommendation adopted, 2011 WL 4478921
(N.D.N.Y. Sept. 26, 2011).
Defendants, having satisfied their burden of establishing that a
grievance procedure existed at Upstate C.F. at the time of the events at
issue in this lawsuit, the burden shifts to Burrell to demonstrate that
the grievance procedure was unavailable to him. See Hubbs v. Suffolk
County Sheriff’s Dept., 788 F.3d 54, 59 (2d Cir. 2015).
E. Burrell’s reasons for not exhausting his administrative
remedies.
In opposition to Defendants’ motion, Burrell argues that he could
not exhaust his administrative remedies because he:
(i) 	was placed on a “paper deprivation, denying him grievance
forms [and] paper” (Dkt. 130-1, Pl. Mem. of Law, at 11);
(ii) 	was transferred from Upstate C.F. to Five Points C.F. and
“had his appeals denied, even after requesting and
extension” (Id.);
(iii) 	was “never interviewed by Defendants, Co-workers,
pertaining to grievances” (Id.);
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(iv) 	“was transferred from Five Points, the same day the alleged
grievance interview took place, by the Five Points
Superintendent” and his “grievances were denied [and] not
process[ed] by Five Points Sgt. McIntyre” (Id.); and
(v) 	“there are no IGRC lockboxes in the SHH/RRU in Upstate or
Five Points, as required by Dir. 4040” (Id.).
For the reasons discussed below, Burrell’s arguments are
unavailing and do not raise any genuine issues of material fact.
i. 	Paper Deprivation
On December 10, 2022, at approximately 11:11 a.m., Burrell’s cell
was searched because he “had obstructed the light in his cell and
visibility of the cell with papers.” (Dkt. 122-1, Def. SOMF, ¶ 1, Dkt. 122-
5, Corcoran Decl., Exhibit “A”, part 2, at p. 41). In addition to covering
his light with paper, the search also revealed that Burrell damaged his
sheets and mattress. (Dkt. 122-1, Def. SOMF, ¶ 1). As a result, Burrell
was placed on a paper, sheet, and mattress deprivation. (Dkt. 122-1,
Def. SOMF, ¶ 3, Dkt. 122-4, Corcoran Decl., Exhibit “A”, part 1, at 161-
65).
Burrell argues that because of the December 10, 2022 paper
deprivation, the administrative process was a “dead end” to him from
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“12/10/25 – 01/09/23.” (Dkt. 130, Burrell’s SOMF, ¶ 45).3 However,
Burrell’s allegations are belied by the documentary evidence submitted
by Burrell and Defendants. First, Burrell admits that he “smuggled
paper from other [incarcerated individuals] and used them as [a]
conduit to file grievances with their names on envelopes to prevent
detection from 12/10/25- 01/09/23.” (Id.). Second, there is no indication
that the paper deprivation extended beyond December 21, 2022.
(Corcoran Decl., Dkt. 122-4, Exhibit “A”, part 1, pg. 162). Third, and
most notably, is the unrefuted fact that Burrell filed nine grievances on
December 27, 2022, within the 21 day window from the alleged
unconstitutional deprivation on December 10, 2022 to file a grievance.
(Corcoran Decl., Dkt. 122-4, Exhibit “A”, part 1, pg. 115).4 5 The Court
therefore finds that the December 10, 2022 paper deprivation did not
cause the grievance process to be a “dead end” and deny Burrell the
ability to exhaust his administrative remedies.
3 The Court notes the error in the “12/10/25” date in Burrell’s submission.
4 UST-22537-22, UST-22538-22, UST-22539-22, UST-22540-22, UST-22541-22,
UST-22542-22, UST-22543-22, UST-22544-22, and UST-22545-22.
5 Burrell authored three of the grievances more fully discussed above on December
21, 2022 and the other two on December 26, 2022.
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ii. 	Facility Transfer – Request for Extension of Time
Burrell asserts that he was transferred from “Upstate to Five
Points” and that he “ha[d] his grievance appeals denied, even after
requesting an extension, [and] grieving the appeal denials.” (Dkt. 130-1,
Pl. Br., at 11). Burrell’s argument does not raise any genuine issues of
material fact.
The Court construes Burrell’s argument as follow – Burrell’s
request for an extension of time to file appeals of his grievance denials
was denied and because his request for more time was denied, he also
appealed the denials of his “appeals.” Burrell’s allegations that he
requested an “extension” of time implicates 7 NYCRR § 701.6(g)(1)(i)
which states that:
(a) An inmate may request an exception to the time limit for
filing a grievance, or for filing an appeal to the
superintendent or to CORC. Such a request shall be in
writing and shall be submitted to the grievance clerk with
the grievance or appeal the inmate wishes to file.
(b) The IGP supervisor may grant an exception to the time
limit for filing a grievance based on mitigating
circumstances (e.g., timely attempts to resolve a
complaint informally by the inmate, etc.). An exception to
the time limit may not be granted if the request was made
more than 45 days after an alleged occurrence.
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(c) The IGP supervisor may grant an exception to the time
limit for filing an appeal of an IGRC or superintendent's
decision based on mitigating circumstances (e.g. failure to
implement action required by the IGRC or
superintendent's decision within 45 days, etc.). An
exception to the time limit may not be granted if the
request was made more than 45 days after the date of the
decision unless the late appeal asserts a failure to
implement the decision.
Burrell’s argument fails because he:
(i) 	provides no proof that he requested an extension of time
to file a grievance in the first instance;
(ii) 	provides no proof that he requested an extension of time
to file an appeal for a grievance denial;
(iii) 	does not provide copies of any written request(s) for any
extension of time to submit a grievance to the clerk (7
NYCRR § 701.6(g)(1)(i));
(iv) 	does not indicate the date(s) he submitted the request(s)
for an extension;
(v) 	does not provide any description of the content of his
request(s) for an extension of time; and
(vi) 	does not provide any evidence that the “mitigating
circumstances” set forth in 7 NYCRR § 701.6(g)(1)(i)(a) or
(b) apply even though he references the same. (Dkt. 130,
pg. 5, ¶ 30).
Burrell’s failure to provide the Court with any details beyond his
conclusory allegations to substantiate his claims are fatal and
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insufficient to raise a genuine issue of fact sufficient to defeat
Defendants’ motion for summary judgment. See Simpson v. Price, No.
9:19-CV-1413 (MAD/ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29,
2021) (“granting summary judgment on exhaustion grounds where
plaintiff ‘provided no specifics regarding when the grievances were
written, their content, or the steps he took to provide them to an officer
to send to the grievance office’ and there was no documentary evidence
to corroborate the fact plaintiff attempted to file a grievance, such as
follow-up correspondences.”).
iii./iv. 	Failure to Interview
To prove that the exhaustion process was unavailable to him,
Burrell alleges that he “was never interviewed by Defendants, Co-
workers, pertaining to grievances” and that he “was transferred from
Five Points the same day the alleged grievance interview took place.”
(Dkt. 130-1, Pl. Mem. of Law, p. 11). However, like many of his other
allegations in opposition to Defendants’ motion, Burrell again offers no
details about these conclusory assertions which, without more, are
insufficient to raise an issue of fact. Further, the documents offered by
Defendants belie Burrell’s contention that he was not interviewed
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and/or that the exhaustion process was a “dead end” to him. (Dkt. 122-
4, pgs. 127, 129, 136, 137, 144, 145). Burrell is a prolific grievance filer,
and for him to suggest that grievance process at Upstate C.F. was
unavailable to him is disingenuous. Between May 19, 2022 and
December 27, 2022, Burrell filed 69 grievances while housed at Upstate
C.F. (Dkt. 122-5, Corcoran Decl., Exhibit “A”, part 2, pgs. 170-72).
v. 	SHU
Next, Burrell claims that “there are no I.G.R.C. lock boxes in the
Upstate SHU/RRU, nor in the Five Pointes SHU/RRU where Plaintiff
was housed” [] “[g]iving Sg. Mcintyre [and] Defendants the access to
thwart grievances Plaintiff file[d] and destroy them.” (Dkt. 130,
Burrell’s SOMF, ¶ 35). Burrell’s assertion is insufficient to defeat
Defendants’ motion for summary judgment. (Dkt. 130, Burrell’s SOMF,
¶ 35).
“[C]ourts in this Circuit have granted summary judgment for
failure to exhaust administrative remedies, even for a prisoner confined
to a SHU whose ability to directly file a grievance or make a copy may
be limited, when the plaintiff provided no documentation or minimal
corroborative details.” See Jackson v. Moore, No. 9:21-CV-1001
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37
(GTS/ATB), 2023 WL 4710869, *6 (N.D.N.Y. April 2023); see also
Sankara v. Montgomery, No. 9:16-CV-00885 (FJS/TWD), 2018 WL
4610686, at *8 (N.D.N.Y. June 25, 2018) (“Plaintiff’s conclusory
allegations that the DOCCS IGP was unavailable to him [while
confined to the SHU] were insufficient to withstand summary
judgment,” where the plaintiff “provided no evidence that he actually
did write grievances; when they were written; the content of the
grievances . . . the officers named in the grievance(s) . . .; the specific
steps taken by Plaintiff to provide them to an officer to send to the
grievance office; and any specific follow up with the grievance office[.]”),
report and recommendation adopted, 2018 WL 3408135 (N.D.N.Y. July
13, 2018); Simpson v. Price, No. 9:19-CV-1413 (MAD/ATB), 2021 WL
7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (in the absence of any
documentary evidence to corroborate plaintiff’s alleged attempt to file a
grievance from the SHU, the court concludes that plaintiff’s completely
unsupported, unclear, and vague implication that the grievance was not
properly processed does not suffice to avoid summary judgment), report
and recommendation adopted, 2022 WL 336540 (N.D.N.Y. Feb. 4, 2022).
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Here, Burrell alleges in conclusory fashion that there were no
“I.G.R.C. lock boxes in the Upstate SHU/RRU, nor in the Five Points
SHU/RRU.” However, Burrell offers no proof:
(i) 	that he prepared any grievances while housed in the
Upstate C.F./Five Points C.F. SHU/RUU;
(ii) 	what the content of those grievances were;
(iii) 	that there were no lock boxes in the Upstate C.F./Five
Points C.F. SHU/RUU to deposit his grievances;6 or
(iv) 	that Sgt. McIntyre and Defendants thwarted and/or
destroyed any grievance that he filed or attempted to
file.
Burrell’s bare bone allegations are insufficient to prove that
exhaustion was a “dead end” to him. See Sankara v. Montgomery, No.
9:16-CV-00885 (FJS/TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25,
2018).
6 Directive 4040 does not require the presence of a lock box in RRU or SHU. While
Directive 4040 is silent as to incarcerated individuals in the RRU, it does address
those individuals in the SHU. Directive 4040, Section 701.7(b) (Procedures for
incarcerated individuals in Special Housing Unites (SHU’s)) states in relevant part
that, “Where available, SHU incarcerated individuals shall use centrally located
deposit boxes to send grievance forms and IGP correspondence to the IGP office …”
7 N.Y.C.R.R. § 701(b).
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***
The Court finds that Burrell has not sustained his burden of
proving that the grievance process at Upstate C.F. was unavailable to
him. See Jenkins v. Cordero, No. 17-CV-1592, 2019 WL 2121655 at *3
(S.D.N.Y. May 15, 2019). His efforts to do so are belied by documentary
evidence and the unsubstantiated and fanciful nature of his allegations.
F. Defendants are entitled to summary judgment regarding
Burrell’s December 10, 2022 First Amendment claim that
Defendants Menard, Durant, Ditullio and Hart removed his
mattress, sheets, blankets, towels, washcloths and paper
because he would not withdraw his claims against
Defendant Ditullio in a separate lawsuit.
The Court grants Defendants summary judgment as to Burrell’s
December 10, 2022 First Amendment claim. Regardless of whether
Burrell exhausted his administrative remedies prior to commencing this
action, the documentary evidence establishes that the deprivation
orders were issued to Burrell because of his own actions and not in
retaliation for him having filed a prior lawsuit against Defendant
Ditullio.
i. 	Legal Standard
To state a claim of retaliation under the First Amendment, a
plaintiff must allege facts plausibly suggesting the following: (i) the
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40
speech or conduct at issue was “protected;” (ii) the Defendants took
“adverse action” against the plaintiff - namely, action that would deter a
similarly situated individual of ordinary firmness from exercising his or
her constitutional rights; and (iii) there was a causal connection
between the protected speech and the adverse action - in other words,
that the protected conduct was a “substantial or motivating factor” in
the Defendant’s decision to take action against the plaintiff. Mount
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). The Second
Circuit has stated that courts must approach prisoner retaliation claims
“with skepticism and particular care,” since “virtually any adverse
action taken against a prisoner by a prison official - even those
otherwise not rising to the level of a constitutional violation - can be
characterized as a constitutionally proscribed retaliatory act.” Dawes v.
Walker, 239 F.3d 489,491 (2d Cir. 2001), overruled on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (citing Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
Indeed, “a plaintiff asserting such a claim bears a heightened
burden of proof and must plead the claim with particularity.” Rucano v.
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Annucci, 9:18-CV-218 (GTS/CFH), 2021 WL 3293504 (N.D.N.Y. May 19,
2021) (citing Green v. Phillips, No. 04-CV-10202, 2006 WL 846272, at *3
(S.D.N.Y. Mar. 31, 2006)). “Consequently, a plaintiff must set forth non-
conclusory allegations to sustain a retaliation claim.” Id. (citing Green,
2006 WL 846272, at *3); see also Williams v. Goord, 111 F. Supp. 2d
280, 290 (S.D.N.Y. 2000) (“In recognition of the reality that retaliation
claims can be fabricated easily, plaintiffs bear a somewhat heightened
burden of proof, and summary judgment can be granted if the claim
appears insubstantial.”) (internal quotation marks and citations
omitted)).
“Allegations, although specific, ‘may still be deemed conclusory if
[they are] (1) largely unsubstantiated by any other direct evidence and
(2) so replete with inconsistencies and improbabilities that no
reasonable juror would undertake the suspension of disbelief necessary
to credit the allegations made in the complaint.’” Smith v. Woods, No.
9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 (N.D.N.Y. Apr. 24,
2006) (internal quotation marks and citations omitted).
It is undisputed that filing a lawsuit is a protected activity. See
Livingston v. Hoffnagle, No. 9:19-CV-353 (GLS/CFH), 2019 WL
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7500501, at *13 (N.D.N.Y. Nov. 8, 2019), report and recommendation
adopted, 2020 WL 95431 (N.D.N.Y. Jan. 8, 2020). With respect to the
second element of a First Amendment retaliation claim, an action is
adverse if it “would deter a similarly situated individual of ordinary
firmness from exercising . . . constitutional rights.” Lewis v. Hanson,
No. 9:18-CV-12 (LEK/DJS) 2022 WL 991729, at *11 (citing Tafari v.
McCarthy, 714 F.Supp.2d 317, 348 (N.D.N.Y. May 24, 2010)).
ii. 	Analysis
Even if Burrell exhausted his administrative remedies with
respect to his December 10, 2022 First Amendment retaliation claim
against Defendants Menard, Durant, Ditullio and Hart, Defendants are
nevertheless entitled to summary judgment dismissing this claim.
As an initial matter, Burrell’s filing of a separate lawsuit against
Defendant Ditullio is a protected activity. See Livingston, 2019 WL
7500501.
To establish the second prong of a retaliation claim, i.e., an
adverse action, a plaintiff must show that a defendant’s retaliatory
conduct would deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights. Doyle, 429 U.S. at 287.
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Burrell cannot make this showing. Despite his allegations, the
documentary evidence establishes that Burrell’s paper, sheets and
mattress were removed from his cell because he was placed on
deprivation orders for covering the light in his cell with paper and
damaging his sheets and mattress. See (Dkt. 122-3, Corcoran Decl.,
Exhibit “A,” part 1, pgs. 161-65). The deprivation orders were issued
because of Burrell’s own behavior and not because he filed a prior action
against Defendant Ditullio. Therefore, no trier of fact could reasonably
find that Defendants’ alleged retaliatory conduct would deter a
similarly situated individual of ordinary firmness from exercising his or
her constitutional rights.
As to the third prong, the allegations in the Complaint and in
Burrell’s response to Defendants’ motion simply do not establish the
requisite causal connection between the issuance of the December 10,
2022 deprivation orders and his prior action against Defendant Ditullio.
See Bouknight v. Shaw, No. 08-CV-5187, 2009 WL 969932, at *6
(S.D.N.Y. Apr. 6, 2009) (stating that inmate’s conclusory assertion that
correction officer “wrote me up for revenge” was insufficient to state
plausible retaliation claim, and that plaintiff had “failed to allege the
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requisite causal connection between his filing of a grievance and Officer
Rivera’s writing him up for an infraction”); see also Cusamano v. Sobek,
604 F.Supp.2d 416, 477-78 (N.D.N.Y. 2009) (dismissing, sua sponte,
prisoner’s retaliation claim against correction officer stemming from
officer’s issuance of misbehavior report against plaintiff, where
plaintiff’s allegations that he was convicted of the disciplinary charge,
and that the conviction was affirmed on appeal, ‘plausibly suggest[ed]
that what caused him to receive the referenced misbehavior report was
his own misconduct’). As noted, Burrell was issued a deprivation order
on December 10, 2022 for conduct that occurred on that day, not
because he previously filed a lawsuit against Defendant Ditullio.
Because Burrell does not raise any issues of fact regarding his
December 10, 2022 First Amendment retaliation claim, the Court
grants Defendants summary judgment on this claim.
G. There is an issue of fact regarding Burrell’s December 10,
2022 Eighth Amendment excessive force claim against
Defendants Locke and Ditullio.
Although there is no issue of fact as to whether Burrell exhausted
his administrative remedies regarding the alleged insertion of a pen in
Burrell’s anus, one does exist as to who is responsible for doing so. The
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Court therefore denies Defendants’ motion for summary judgment
regarding Burrell’s December 10, 2022 Eighth Amendment excessive
force claim against Defendants Locke and Ditullio.
i. 	Legal Standard
Incarcerated individuals enjoy Eighth Amendment protection
against the use of excessive force and may recover damages under 42
U.S.C. § 1983 for a violation of those rights. See Hudson v. McMillian,
503 U.S. 1, 9-10 (1992). To sustain an Eighth Amendment excessive-
force claim, a plaintiff must establish both an objective and subjective
element. See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999); see
also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993).
To satisfy the objective element, a plaintiff must prove that a
defendant’s conduct was “inconsistent with the contemporary standards
of decency.” Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation
omitted); Hudson, 503 U.S. at 9. “The Eighth Amendment’s prohibition
of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided
that the use of force is not of a sort repugnant to the conscience of
mankind.” Hudson, 503 U.S. at 9-10 (citations omitted). “Not every
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push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates a prisoner’s constitutional rights.” Sims v.
Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (citation omitted). Claims “of
excessive force may be established even if the victim does not suffer
serious . . . or significant injury, . . . provided that the amount of force
used is more than de minimis or involves force that is repugnant to the
conscience of mankind.” Hudson, 503 U.S. at 7-10 (cleaned up).
To prove the subjective element, a plaintiff must show that the
Defendant’s actions were wanton. Simms, 230 F.3d. at 21 (citation
omitted). The wantonness inquiry “turns on ‘whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.’” Id. (quoting Hudson, 503 U.S. at 7).
When determining whether defendants acted in a malicious or wanton
manner, courts consider five factors: (i) the extent of the injury and the
mental state of the defendant; (ii) the need for the application of force;
(iii) the correlation between that need and the amount of force used; (iv)
the threat reasonably perceived by the defendants; and (v) any efforts
made by the defendants to temper the severity of a forceful response.
Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).
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It is undisputed that Burrell had a pen in his anus. (Dkt. 123, pgs.
1-3). It is also undisputed that the pen was “discharged” on December
15, 2022. (Dkt. 123, pg. 15). There are, however, issues of fact as to who
inserted the pen in Burrell’s anus. Paragraphs “47” and “48” of the
Complaint allege Defendant Ditullio informed Burrell that “[Defendant]
Locke has a present for [Burrell]” and that Defendant Ditullio “began
lowering [Burrell’s] pants & boxers, & where his anus area was entered
with a pen-like shape object. (Compl., Dkt. 1, ¶¶ 47-48). In contrast, and
in response to Burrell’s allegations, Defendant Ditullio declares that
“[a]t no time did I use excessive force against [Burrell], nor did I witness
any other correction staff use excessive force against [Burrell].” (Dkt.
122-13, Ditullio Decl., ¶ 7). Notably, Defendant Locke states in general
terms that “[a]t no time did I violate [Burrell’s] constitutional rights,”
but is otherwise silent regarding the specific behavior Burrell complains
of. (Dkt. 122-19, Locke Decl., ¶ 6). Because Defendants are unable to
demonstrate the absence of a genuine issue of material fact, their
motion for summary judgment regarding Burrell’s claim of a pen being
inserted in his anus is denied. See Fed. R. Civ. P. 56; see also Tarpon
Bay Partners LLC v. Zerez Holdings Corp., 79 F.4th 206, 220 (2d Cir.
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48
2023) (“a dispute about a genuine issue of material fact occurs if the
evidence is such that a reasonable factfinder could return a verdict for
the nonmoving party.”) (cleaned up). The Court “may not resolve
genuine disputes of fact in favor of the party seeking summary
judgment.” Tolan, 572 U.S. at 656. And because this issue of fact exists,
the Court denies Defendants’ motion for summary judgment on
Burrell’s Eighth Amendment excessive force claim.
H. 	Qualified Immunity
As discussed above, there remains disputed issues of fact that
preclude a summary disposition as to whether Defendants Locke and
Ditullio violated Burrell’s Eighth Amendment. These questions of fact
defeat an application of qualified immunity at this stage. See Robinson
v. Taylor, No. 9:16-CV-0285 (BKS/DJS), 2017 WL 4174795, at *6
(N.D.N.Y. 2017) (denying summary judgment on qualified immunity
grounds where “resolution of the objective reasonableness of
Defendants’ actions ‘depends on the determination of certain factual
questions that cannot be answered at this stage of the litigation.’”)
(citation omitted); see also Lloyd v. City of New York, 246 F. Supp. 3d
704, 725 (S.D.N.Y. 2017) (denying summary judgment where “there are
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49
unresolved facts that are material to a determination of the
reasonableness of the officers' conduct”).
V. CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that Defendants’ motion for summary judgment
(Dkt. 122) is GRANTED IN PART AND DENIED IN PART, and it is
further
ORDERED, that Defendants’ motion for summary judgment
(Dkt. 122) as to whether Burrell exhausted his administrative remedies
regarding his December 10, 2022 First Amendment retaliation claim
against Defendants Menard, Durant, Ditullio and Hart is DENIED,
and it is further
ORDERED, that even though there is an issue of fact as to
whether Burrell exhausted his administrative remedies regarding his
December 10, 2022 First Amendment retaliation claim against
Defendants Menard, Durant, Ditullio and Hart, the Court nevertheless
GRANTS Defendants’ motion for summary judgment because there are
no issues of fact on the substantive claim, and it is further
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50
ORDERED, that Defendants’ motion for summary judgment
(Dkt. 122) on the issue of whether Burrell exhausted his administrative
remedies regarding his Eighth Amendment Claim against Defendants
Ditullio and Locke for allegedly inserting a pen in his anus is DENIED,
and it is further
ORDERED, that Defendants’ motion for summary judgment
(Dkt. 122) regarding Burrell’s Eighth Amendment claim that
Defendants Locke and Ditullio inserted a pen in his anus is DENIED,
and it is further
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam), and it is further
ORDERED, that this case is deemed trial-ready and will proceed
to trial on Burrell’s Eighth Amendment claim for excessive force against
Defendants Ditullio and Locke. Considering Burrell’s previous motion
for the appointment of counsel (Dkt. 137), the Court sua sponte
instructs the Clerk that Pro Bono Counsel be appointed for Burrell for
trial purposes.
Dated: March 4th, 2026 _________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Jackson v. Moore, Not Reported in Fed. Supp. (2023)
2023 WL 4710869
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4710869
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Dumar JACKSON, Plaintiff,
v.
N. MOORE, Defendant.
9:21-CV-1001 (GTS/ATB)
|
Signed April 14, 2023
Attorneys and Law Firms
DUMAR JACKSON, Plaintiff, pro se.
RACHAEL S. OUIMET, Assistant Attorney General, for
Defendant.
REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 In this pro se civil rights action, plaintiff alleges
that the defendant violated his Eighth Amendment rights
when he failed to protect plaintiff from another inmate.
Presently before the court is defendant Correctional Officer
(“C.O.”) Moore's motion for summary judgment. (Dkt. No.
16). This matter has been referred to me for Report and
Recommendation by United States District Judge Glenn T.
Suddaby, pursuant to 28 U.S.C. § 636(b) and Local Rule
N.D.N.Y. 72.3(c). For the reasons set forth below, this court
will recommend granting defendant's motion and dismissing
the complaint in its entirety.
I. Background
A. Procedural History
In this civil rights action, plaintiff alleges a constitutional
violation occurred while he was incarcerated at Clinton
Correctional Facility (“Clinton C.F.”), in the custody
of the New York State Department of Corrections and
Community Supervision (“DOCCS”). Plaintiff filed the
original complaint on September 10, 2021. (Dkt. No. 1). On
October 25, 2021, the court issued a Decision and Order
granting plaintiff's application to proceed in the action in
forma pauperis (“IFP”), and conditionally dismissing the
original complaint because it failed to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915 and
28 U.S.C. § 1915A. (Dkt. No. 4). The court granted plaintiff
leave to amend his complaint to “correct[ ] the pleading
defects” identified with his original complaint. (Id. at 10).
Plaintiff availed himself of the opportunity to amend, and
the court received plaintiff's amended pleading on or about
November 18, 2021. (Dkt. No. 6, “Am. Compl.”).
On February 9, 2022, I determined, pursuant to my initial
review of the complaint, that plaintiff's amended complaint
was accepted for filing and that the only active defendant was
C.O. Moore. (Dkt. No. 7 at 3). C.O. Moore filed an answer
to the amended complaint on April 14, 2022. (Dkt. No. 12).
On December 15, 2022, defendant filed this instant motion
for summary judgment (Dkt. No. 16), to which plaintiff
responded on February 16, 2023 (Dkt. No. 20).
B. Summary of Complaint
The complaint alleges that on September 6, 2018, while
plaintiff was confined in Clinton C.F., he was attacked by
another inmate when they were released from their keep-
lock cells at the same time. (Am. Comp. at 4). Although
facility policies and procedures prohibited C.O. Moore from
releasing the other inmate “until [plaintiff] was ... back in
general population,” C.O. Moore nevertheless released both
inmates simultaneously, knowing that plaintiff did not have
an escort at the time. Id. C.O. Moore also “knew there was a
race war going on in [Clinton C.F.] with the bloods and the
Spanish gangs and let [plaintiff] out of [his] cell with a known
gang member posed [sic] a substantial risk of serious harm
to [him].” Id. Although C.O. Moore observed the inmate run
into plaintiff's cell and attack him, C.O. Moore “did nothing
to prevent it from happening.” Plaintiff was returned to keep-
lock after the incident and remained there for an additional 70
days, until November 15, 2018. (Dkt. No. 16-3, Pl.’s Dep. at
18, 27, 79, 88, 95; Internal Movement History, Dkt. No. 20-1
at 31).
II. Summary Judgment
*2 Summary judgment is appropriate where there exists no
genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263,
272-73 (2d Cir. 2006). Rule 56(b) provides that a party may
file a motion for summary judgment “at any time until 30
days after the close of all discovery.” Fed. R. Civ. P. 56(b).
Thus, a party may move for summary judgment in lieu of
an answer. See, e.g., Anderson v. Rochester-Genesee Reg'l
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Jackson v. Moore, Not Reported in Fed. Supp. (2023)
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Transp. Auth., 337 F.3d 201, 202 (2d Cir. 2003); Crenshaw
v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010); Riehl v.
Martin, No. 9:13-CV-439 (GLS/TWD), 2014 WL 1289601,
at *1-2 (N.D.N.Y. Mar. 31, 2014).
The moving party has the burden to show the absence of
disputed material facts by informing the court of portions
of pleadings, depositions, and affidavits which support the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party satisfies its burden, the nonmoving party
must move forward with specific facts showing that there is
a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at
273. In that context, the nonmoving party must do more than
“simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). However, in determining
whether there is a genuine issue of material fact, a court must
resolve all ambiguities, and draw all inferences, against the
movant. See United States v. Diebold, Inc., 369 U.S. 654,
655 (1962); Salahuddin, 467 F.3d at 272. “Only disputes over
[‘material’] facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986). It must be apparent that no rational finder of
fact could find in favor of the non-moving party for a court
to grant a motion for summary judgment. Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
While courts are required to give due deference to a plaintiff's
pro se status, that status “does not relieve plaintiff of his
duty to meet the requirements necessary to defeat a motion
for summary judgment.” Jorgensen v. Epic/Sony Records,
351 F.3d 46, 50 (2d Cir. 2003). Where a party has failed
to respond to the movant's statement of material facts as
required by Local Rule 7.1(a)(3), the facts in the movant's
statement will be accepted as true (1) to the extent they are
supported by evidence in the record, and (2) the non-movant,
if proceeding pro se, has been specifically advised of the
possible consequences of failing to respond to the motion.
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Although plaintiff received proper notice of his obligation
to respond to defendant's summary judgment motion in
accordance with Local Rules, the plaintiff did not file a
Statement of Material Facts that addressed many of the factual
allegations in defendant's Statement, as required by Local
Rule 7.1(a)(3). 1 Consequently, the court may accept the
properly supported facts contained in the defendants’ Rule
7.1 statement (Dkt. No. 16-2) as true for purposes of this
motion. See Govan v. Campbell, 289 F. Supp. 2d 289, 295-96
(N.D.N.Y. 2003).
1 Defense counsel specifically advised plaintiff of
the consequences of failing to respond to the
summary judgment motion. (Dkt. No. 16). Counsel
forwarded, to plaintiff, a copy of the court's form
Notification of the Consequences of Failing to
Respond to a Summary Judgment Motion, which
provided in pertinent part:
If you do not file a proper response to this
motion, the Court may grant the motion and
dismiss some or all of your claims. Under
Local Rules 7.1(b) and 56.1(b), to file a proper
response to this motion, you must submit the
following papers:
(1) A response to the defendants’ statement
of material facts that admits and/or denies
each of the defendants’ assertions in matching
numbered paragraphs, 1 and that supports
each denial with citations to record evidence.
* * *
WARNING: If you do not submit a proper
response to the defendants’ statement of material
facts, the Court may deem you to have admitted
the defendants’ factual statements.
(Dkt. No. 16 at 4).
III. Exhaustion of Administrative Remedies
A. Legal Standards
*3 The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C.
§ 1997e(a), requires an inmate to exhaust all available
administrative remedies prior to bringing a federal civil rights
action. The exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and regardless of the subject matter of
the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.
2004), (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)),
abrogated on other grounds, Ross v. Blake, 578 U.S. 632
(2016). Inmates must exhaust their administrative remedies
even if they are seeking only money damages that are not
available in prison administrative proceedings. Id. at 675.
In order to properly exhaust an inmate's administrative
remedies, the inmate must complete the administrative review
process in accordance with the applicable state rules. Jones
v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford
v. Ngo, 548 U.S. 81 (2006)). In Woodford, the court
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held that “proper” exhaustion means that the inmate must
complete the administrative review process in accordance
with the applicable procedural rules, including deadlines, as
a prerequisite to bringing suit in federal court. Woodford, 548
U.S. at 90-103.
The grievance procedure in New York is a three-tiered
process. The inmate must first file a grievance with the
Incarcerated 2 Grievance Resolution Committee (“IGRC”).
N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and
(b). An adverse decision of the IGRC may be appealed to
the Superintendent of the Facility. Id. § 701.5(c). Adverse
decisions at the Superintendent's level may be appealed
to the Central Office Review Committee (“CORC”). Id. §
701.5(d). The court also notes that the regulations governing
the Incarcerated 3 Grievance Program (“IGP”) encourage
the inmate to “resolve his/her complaints through the
guidance and counseling unit, the program area directly
affected, or other existing channels (informal or formal)
prior to submitting a grievance.” Id. § 701.3(a) (Inmate's
Responsibility). There is also a special section for complaints
of harassment. Id. § 701.8. Complaints of harassment are
handled by an expedited procedure which provides that such
grievances are forwarded directly to the Superintendent of
the facility, after which the inmate must appeal any negative
determination to the CORC. Id. §§ 701.8(h) and (I), 701.5.
2 This committee was formerly known as the
“Inmate Grievance Resolution Committee,” but
has recently been renamed.
3 The program was formerly known as the “Inmate
Grievance Program,” but has recently been
renamed.
Prior to Ross v. Blake, supra, the Second Circuit utilized
a three-part inquiry to determine whether an inmate had
properly exhausted his administrative remedies. See Brownell
v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing
Hemphill v. State of New York, 380 F.3d 680, 686 (2d
Cir. 2004)). The Hemphill inquiry asked (1) whether the
administrative remedies were available to the inmate; (2)
whether defendants’ own actions inhibiting exhaustion estops
them from raising the defense; and (3) whether “special
circumstances” justify the inmate's failure to comply with the
exhaustion requirement. Id.
In Ross, the Supreme Court made it clear that courts
may not excuse a prisoner's failure to exhaust because of
“special circumstances.” Ross v. Blake, 578 U.S. 632, 640
(2016). “[M]andatory exhaustion statutes like the PLRA
establish mandatory exhaustion regimes, foreclosing judicial
discretion.” Riles v. Buchanan, 656 F. App'x 577, 580 (2d Cir.
2016) (quoting Ross, 578 U.S. at 639). Although Ross has
eliminated the “special circumstances” exception, the other
two factors in Hemphill – availability and estoppel – are still
valid. The court in Ross referred to “availability” as a “textual
exception” to mandatory exhaustion, and “estoppel” has
become one of the three factors in determining availability.
Ross, 578 U.S. at 642. Courts evaluating whether an inmate
has exhausted his or her administrative remedies must also
consider whether those remedies were “available” to the
inmate. Id.; see also Riles, 2016 WL 4572321 at *2.
B. Analysis
*4 Defendant C.O. Moore argues that plaintiff's failure-to-
protect claim is subject to dismissal, for failure to exhaust
administrative remedies, because plaintiff did not file an
initial grievance prior to bringing suit, nor did he appeal
the denial of any grievance concerning this claim to CORC.
(Dkt. No. 16-1, Defendant's Memorandum of Law at 14).
In support of his position, defendant has attached to his
motion papers the sworn declarations of Rachael Seguin
(“Seguin Decl.”) (Dkt. No. 16-7), the Director of the IGP
for DOCCS, and Christine Gregory, the IGP Supervisor
at Clinton C.F. (“Gregory Decl.”) (Dkt. No. 16-6). These
declarations, and the evidence attached as exhibits thereto,
indicate that plaintiff neither filed an initial grievance related
to his claim that C.O. Moore failed to protect him from
another inmate on September 6, 2018, nor did plaintiff submit
an appeal to CORC. (See Gregory Decl. ¶¶ 16-20; Seguin
Decl. ¶¶ 12-14, Ex. A).
In opposition to defendant's motion, plaintiff alleges that,
while confined in his keep-lock cell, he attempted to file a
grievance relating to the incident with C.O. Moore by putting
a sealed letter on the gate for mail pickup. (Dkt. No. 20 at 2-3;
Pl.’s Dep. at 87-89). Plaintiff testified that he remembered the
grievance being picked up by an unnamed officer, but does
not remember the exact day he mailed the grievance. 4 (Dkt.
No. 16-3, Pl.’s Dep. at 87-89, 93). Plaintiff speculates that an
unnamed officer on duty threw his grievance away. (Dkt. No.
20 at 2-3; Pl.’s Dep. at 87-89)
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4 Plaintiff testified that he filed the grievance “it was
in like the same – I want to say around like the 22 nd
or so.” (Pl.’s Dep. at 87-88).
Plaintiff acknowledged that he never followed up with respect
to his grievance for the 70 days after the incident when he was
confined on keeplock; but he alleges that he asked sergeants,
officers, and counselors about the status of his grievance and
they told plaintiff “they'll get back to you.” (Pl.’s Dep. at
93-94). Plaintiff admitted that he did not retain any copies
of the purported grievances relative to his complaints against
C.O. Moore. (Id. at 88). 5
5 Plaintiff alleges that he was told “it was a code
49 and that it had to go to the superintendent
office.” (Dkt. No. 20 at 3).
Plaintiff further testified that he not only understood the
grievance process, but also that he participated in an
orientation program at Clinton C.F. about how the grievance
process works at the facility. (Id. at 85-86). He admitted that
he filed “a couple” of grievances after the incident concerning
other matters, while still residing at Clinton C.F. (Id. at 90).
The record before this court clearly established that the
defendant did not exhaust administrative remedies with
respect to the failure-to-protect claim against C.O. Moore.
Given that an initial grievance was never filed, nor was the
claim ever appealed to CORC, the question becomes whether
plaintiff's failure to exhaust should be excused.
The defendant has satisfied his initial burden of
“establishing ... that a grievance process exist[ed] and
applie[d] to the underlying dispute.” Hubbs v. Suffolk
County Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)
(citation omitted). 6 Thus, plaintiff assumes the burden
of producing evidence that one of the exceptions to the
administrative exhaustion requirement applies, excusing his
failure to exhaust and permitting his claim to survive
summary judgment. Id. (“If the defendants meet this
initial burden, administrative remedies may nonetheless be
deemed unavailable if the plaintiff can demonstrate that
other factors ... rendered a nominally available procedure
unavailable as a matter of fact.”) 7
6 IGP Supervisors Gregory and Seguin stated
Clinton C.F. had a fully functioning IGP program at
all times relevant to the complaint. (Gregory Decl.
¶ 16; Seguin Decl. ¶ 11). Plaintiff also testified that
he filed a grievance for an unrelated matter after the
incident and received an unfavorable decision and
appealed that decision. (Pl.’s Dep. 90-91).
7 I agree with Magistrate Judge Peebles’ cogent
analysis that, while the burden of production may
shift to a plaintiff with respect to certain aspects
of the exhaustion issue, “the ultimate burden
of proof with respect to the exhaustion defense
remains, at all times, with the defendant.” See,
e.g., Bailey v. Fortier, No. 9:09-CV-0742 (GLS/
DEP), 2012 WL 6935254, at *5-6 (N.D.N.Y. Oct. 4,
2012), report and recommendation adopted, 2013
WL 310306 (N.D.N.Y. Jan. 25, 2013); Nelson v.
Plumley, No. 9:12-CV-422 (TJM/DEP), 2015 WL
4326762, at *7-8 (N.D.N.Y. July 14, 2015), report
and recommendation adopted, 2013 WL 1305338
(N.D.N.Y. Mar. 18, 2013).
*5 Liberally construed, plaintiff appears to argue that
administrative remedies were unavailable to him as a result of
C.O. Moore trying “to cover his mistakes up”. (Dkt. No. 20
at 2-3). Plaintiff does not offer any support for his claim other
than his statement “officers talk like inmates talk. So knowing
the incident, knowing I put in a grievance, they wanted to be
nosey [sic], and they opened it and never let it get to where
it was supposed to go once it was read.” (Pl.’s Dep. at 89).
During his deposition, plaintiff specifically stated that C.O.
Moore was not the person who picked up the grievance. (Pl.’s
Dep. at 88-89). Furthermore, plaintiff testified the alleged
grievance was sealed, so the unnamed C.O. would have no
way of knowing what conduct the grievance was referring to
unless (s)he opened the envelope. (Pl.’s Dep. at 92).
As noted above, plaintiff was on keep-lock status when he
allegedly attempted to submit a grievance relating to the
claim in this action by leaving a sealed envelope for C.O.s
to deliver. “Keeplock is a form of disciplinary confinement
segregating an inmate from other inmates and depriving him
of participation in normal prison activities.” Green v. Bauvi,
46 F.3d 189, 192 (2d Cir. 1995); N.Y. Comp. Codes R.
& Regs. tit. 7, § 301.6. While “[k]eep-lock is similar to
serving time in a Special Housing Unit ... [with the inmate]
remain[ing] in their assigned cell” (Dkt. No. 16-5, Terry Allen
Declaration ¶ 7), plaintiff acknowledged that keep-lock status
is “not like if you were in the SHU” (Pl.’s Dep. at 35).
In Williams v. Priatno, 829 F.3d 118, 123-27 (2d Cir.
2016), the Second Circuit considered whether administrative
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remedies had been “actually available” to an inmate plaintiff
under Ross, after the district court granted the defendants’
motion to dismiss for failure to exhaust. The plaintiff alleged
that, while housed in a SHU, he drafted a grievance that he
delivered to a correction officer to forward to the grievance
office on his behalf. Id. at 120-121. Approximately two weeks
later, the plaintiff was transferred to a different facility. Id.
at 121. He never received a response to his grievance, and
alleged that it was never filed by the officer to whom he had
given it. It was undisputed that plaintiff never appealed the
grievance. Id.
The defendants in Williams argued that even if the grievance
was never filed, the plaintiff was required to appeal it and
complete the grievance process. Id. at 124. The defendants
relied on a DOCCS regulation that provided that “an inmate
may appeal a grievance ‘to the next step’ if he does not
receive a timely response.” Id. (quoting N.Y. Comp. Codes
R. & Regs. tit. 7, § 701.6(g)(2)). The Second Circuit rejected
this argument and held that, for an inmate in the plaintiff's
situation, the regulatory scheme was so “opaque” and
“confusing” as to be practically unavailable. Id. The Second
Circuit found that DOCCS regulations “only contemplate
appeals of grievances that [have been] actually filed ... [and]
give no guidance whatsoever to an inmate whose grievance
was never filed.” Id. Thus, Williams holds that “the process to
appeal an unfiled and unanswered grievance is prohibitively
opaque, such that no inmate could actually make use of it.”
Id. at 126. 8 See also Medina v. Napoli, 725 F. App'x 51,
53-54 (2d Cir. 2018) (following Williams in the context of a
summary judgment motion).
8 My summary of Williams tracks that of Magistrate
Judge Stewart in Berman v. Durkin, No. 9:13-
CV-136 (LEK/DJS), 2017 WL 1215814, at
*8 (N.D.N.Y. Mar. 10, 2017), report and
recommendation adopted, 2017 WL 1207834
(N.D.N.Y. Mar. 31, 2017).
Some district court cases in the Second Circuit suggest that
Williams should be limited to its particular facts, e.g., by
not applying its holding to plaintiffs who are not confined
in a SHU. 9 See, e.g., Shaw v. Ortiz, No. 15-CV-8964, 2016
WL 7410722, at *6 (S.D.N.Y. Dec. 21, 2016) (“the factual
scenario here is different from that in Williams where the
Second Circuit found that part of the IGP's regulatory scheme
was ‘so opaque and so confusing that ... no reasonable
prisoner c[ould] use’ it.”) (citing Mena v. City of New
York, No. 13-CV-2430, 2016 WL 3948100, at *5 (S.D.N.Y.
July 19, 2016) (finding that the Second Circuit's decision
in Williams “hinged on the ‘extraordinary circumstances’
specific to the case before it”)); Blake v. Porlier, No. 9:18-
CV-1008 (DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y.
Oct. 4, 2019) (“Courts have taken an inmate's housing and
level of segregation from the general population into account
when determining the availability of grievance procedures.”)
(citing Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH),
2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (holding
that a plaintiff in keeplock was not entitled to an exhaustion
exception when he alleged that his grievance had not been
filed due to mail tampering, and subsequently never inquired
about it), report and recommendation adopted, 2017 WL
2790530 (N.D.N.Y. June 27, 2017)).
9 In Medina v. Napoli, 725 F. App'x at 53-54,
the Second Circuit followed Williams in a case
involving a SHU inmate, but absent the additional
circumstance of a transfer to a different facility,
which might have further complicated the inmate's
ability to file a grievance.
*6 In any event, unsupported assertions that a plaintiff
“filed a grievance but that it was somehow lost or destroyed”
have generally been found “insufficient to establish a genuine
issue of fact.” Blake v. Porlier, 2019 WL 7484052, at *5
(“Courts within the Second Circuit have continuously held
that ‘mere contentions or speculation of grievances being
misplaced by officers do not create a genuine issue of material
fact when there is no evidence to support the allegations.’
”) (quoting Rodriguez v. Cross, 2017 WL 2791063, at *5);
Artis v. Dishaw, No. 9:14-CV-1116 (MAD/ATB), 2016 WL
11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016) (finding
the plaintiff's failure to exhaust was not excusable, in part,
because while the plaintiff “state[d] that some grievances
were destroyed ... he ha[d] not submitted any copies of
these grievances, nor d[id] he specify when he attempted
to file them”), report and recommendation adopted, 2017
WL 1076343 (N.D.N.Y. Mar. 22, 2017); Engles v. Jones,
No. 6:13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y.
Dec. 28, 2018) (“Plaintiff's unsupported assertion that he filed
a grievance but that it was somehow lost or destroyed is
insufficient to establish a genuine issue of material fact.”)
(citing Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555
(W.D.N.Y. 2018)).
Moreover, courts in this Circuit have granted summary
judgment for failure to exhaust administrative remedies, even
for a prisoner confined to a SHU whose ability to directly file
a grievance or make a copy may be limited, when the plaintiff
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provided no documentation or minimal corroborative details.
See, e.g., Sankara v. Montgomery, No. 9:16-CV-00885 (FJS/
TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018)
(“Plaintiff's conclusory allegations that the DOCCS IGP
was unavailable to him [while confined to the SHU] were
insufficient to withstand summary judgment,” where the
plaintiff “provided no evidence that he actually did write
grievances; when they were written; the content of the
grievances ... the officers named in the grievance(s) ...; the
specific steps taken by Plaintiff to provide them to an officer
to send to the grievance office; and any specific follow up
with the grievance office[.]”), report and recommendation
adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018);
Simpson v. Price, No. 9:19-CV-1413 (MAD/ATB), 2021 WL
7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (in the absence of
any documentary evidence to corroborate plaintiff's alleged
attempt to file a grievance from the SHU, the court concludes
that plaintiff's completely unsupported, unclear, and vague
implication that the grievance was not properly processed
does not suffice to avoid summary judgment), report and
recommendation adopted, 2022 WL 336540 (N.D.N.Y. Feb.
4, 2022); Ozzborn v. Cornell, No. 9:17-CV-1039 (MAD/
ATB), 2021 WL 2227829, at *5 (N.D.N.Y. June 2, 2021)
(Plaintiff claimed that he filed a grievance from the SHU
by leaving a plain envelope addressed to the grievance
committee for the mail personnel to collect; but, because he
never received a response, he presumed that the grievance was
never submitted. Because plaintiff never followed up on his
grievance and successfully filed numerous other grievances
in the recent past, he has failed to demonstrate that his
administrative remedies were unavailable to him). 10
10 District Judge D'Agostino distinguished Williams
v. Priatno by noting the various ways in which the
plaintiff in Williams specified how he followed up
with respect to the grievance that he left for delivery
from the SHU, which was never filed with the IGP.
Id. at *4.
Here, the court does not merely rely on plaintiff's lack of direct
evidence, such as copies of the relevant grievances, in finding
that he has failed to establish a genuine issue of material fact
as to unavailability. Plaintiff in this case has done nothing
more than allege in conclusory fashion that he attempted to
file a grievance concerning a the September 6, 2018 incident.
Plaintiff's testimony about when he attempted to submit the
grievance was vague and he did not identify the officer who
allegedly collected it. Likewise, he has not supported his
claim that unnamed sergeants, officers, and counselors told
him “not to worry” with any documentary evidence. See, e.g.,
Belile v. Griffin, No. 9:11-CV-0092 (TJM/DEP), 2013 WL
1776086, at *8 (N.D.N.Y. Feb. 12, 2013) (“Plaintiff's mere
threadbare allegations that his grievances were intercepted
and discarded, without evidence to support such allegation,
including any evidence that identifies which defendant, in
particular, is responsible for discarding the grievances, are
insufficient to excuse his failure to comply with the IGP
[process]”), report and recommendation adopted, 2013 WL
1291720 (N.D.N.Y. Mar. 27, 2013).
*7 For the above reasons, the court concludes that plaintiff's
completely unsupported and vague claim that a grievance
he attempted to file against C.O. Moore relative to the
September 6, 2018 incident was not properly processed does
not suffice to avoid summary judgment. Accordingly, the
court recommends that C.O. Moore be granted summary
judgment and the second amended complaint be dismissed
against him, on the ground that plaintiff failed to exhaust his
administrative remedies.
Dismissal with prejudice is appropriate where the plaintiff had
the opportunity to exhaust administrative remedies, failed to
do so, and is unable to cure his failure to exhaust. Berry v.
Kerik, 366 F.3d 85, 87 (2d Cir. 2004). Here, plaintiff's time
to file the relevant grievance to CORC in accordance with
the rules and regulations has already passed, 11 rendering his
failure to exhaust his administrative remedies incurable at this
time. As a result, I recommend that plaintiff's complaint be
dismissed with prejudice as to these claims. See Livingston v.
Hoffnagle, No. 17-CV-1158 (MAD/DEP), 2019 WL 409366,
at *7 (N.D.N.Y. Feb. 1, 2019) (dismissing without leave to
amend, where the exhaustion error would not be cured by
permitting the plaintiff leave to amend).
11 “Ordinarily, an inmate must first submit ‘a
complaint,’ or grievance, to the facility's IGP clerk
within twenty-one days of the alleged occurrence
giving rise to his complaint. 7 N.Y.C.R.R. §
701.5(a). Relief from the twenty-one day time limit
may be granted by the IGP supervisor based upon
mitigating circumstances, provided, however, that
‘[a]n exception to the time limit may not be granted
if the request was made more than 45 days after an
alleged occurrence.’ ” Nelson v. Plumley, 2015 WL
4326762, at *2 (citing N.Y.C.R.R. § 701.6(g)(1)(i)
(a)).
IV. Eighth Amendment Failure to Protect Claim
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Defendant also seeks summary judgment on the merits of
plaintiff's failure to protect claim, arguing, among other
things, that plaintiff has failed to establish C.O. Moore
was acting with deliberate indifference to conditions that
posed a substantial risk of serious harm to plaintiff. For the
following reasons, the court agrees that summary judgment is
warranted, in the alternative, on the merits of plaintiff's Eighth
Amendment claim.
A. Legal Standards
In order to state an Eighth Amendment claim for failure
to protect an inmate, the plaintiff must show that he was
incarcerated under conditions posing a substantial risk of
serious harm, and prison officials acted with deliberate
indifference to that risk and the inmate's safety. Farmer v.
Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970 (1994). The
plaintiff must show that prison officials actually knew of and
disregarded an excessive risk of harm to the inmate's health
and safety. Id. at 837, 114 S. Ct. 1970. The defendant must be
aware of the facts from which the inference can be drawn that
a substantial risk of serious harm exists, and the defendant
must also draw that inference. Id.
The failure of corrections officers to employ reasonable
measures to protect an inmate from violence by other inmates
may rise to the level of an Eighth Amendment violation. See
Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985) (citing
United States v. Bailey, 444 U.S. 394, 423 (1980)). “Reckless
disregard” of plaintiff's right to be free from attacks by other
inmates may be shown by the existence of a “pervasive risk of
harm to inmates from other prisoners and a failure by prison
officials to reasonably respond to that risk.” Knowles v. New
York City Dep't of Corr., 904 F. Supp. 217, 221-22 (S.D.N.Y.
1995) (citing Rucco v. Howard, No. 91 Civ. 6762, 1993 WL
299296, at *4 (S.D.N.Y. Aug. 4, 1993); Martin v. White, 742
F.2d 469, 474 (8th Cir. 1984)).
*8 An isolated omission by corrections officers generally
does not support a claim for deliberate indifference
absent circumstances involving evil intent, recklessness, or
deliberate indifference. Coronado v. Goord, No. 99 Civ.
1674, 2000 WL 1372834, at *4 (S.D.N.Y. Sept. 25, 2000)
(citing Ayers v. Coughlin, 780 F.2d at 209). Plaintiff may
allege a constitutional claim by alleging that the substantial
risk of inmate attacks was longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past,
and that the officials being sued were exposed to information
concerning the risk and thus, must have known about it. Id.
(citing Farmer, 511 U.S. at 842-43).
B. Analysis
With due regard for plaintiff's status as a pro se litigant,
plaintiff has failed to establish that C.O. Moore knew of a
particular risk to plaintiff's safety or that C.O. Moore was
deliberately indifferent for failing to protect plaintiff. Plaintiff
merely offers conclusory, general allegations that C.O. Moore
knew about an alleged gang and/or race war happening at
Clinton C.F. (Dkt. No. 20 at 2). However, C.O. Moore has, in
his sworn declaration, denied having any knowledge about a
race war at Clinton C.F. or having any access to information
regarding an inmate's gang status. (Moore Decl. ¶¶ 21, 23).
Even if C.O. Moore did have access to such records, plaintiff
testified that he is not a member of a gang. (Jackson Dep. at
19). Thus, there is nothing in the record other than plaintiff's
conclusory allegations establishing that C.O. Moore knew
plaintiff was at a substantial risk of harm because of an alleged
gang war.
Plaintiff's claim is further undermined by his sworn testimony
admitting that he had not had any prior interactions with
the inmate who attacked him before the underlying incident.
(Jackson Dep. at 19-20); Gillard v. Jarvis, No. 9:11-CV-1021
(LEK/ATB), 2012 WL 7037734, at *7 (N.D.N.Y. Nov.
6, 2012), report and recommendation adopted, 2013 WL
474384 (N.D.N.Y. Feb. 7, 2013) (“If plaintiff did not know the
inmate who assaulted him, he cannot claim that defendants
“knew” and disregarded the serious risk that plaintiff would
be assaulted at Clinton by this unknown individual.”).
Plaintiff has not alleged that he was threatened by the other
inmate, or any member of the other inmate's race or gang,
prior to this incident. Additionally, neither inmate was in
protective custody when they were released form their cells.
(Moore Decl. ¶ 14). Plaintiff also testified he never asked for
protective custody before or after the incident. (Jackson Dep.
at 73).
“Courts routinely deny deliberate indifference claims based
upon surprise attacks.” Zimmerman v. Macomber, No. 95 Civ.
0882, 2001 WL 946383, at *5 (S.D.N.Y. Aug. 21, 2001)
(granting summary judgment in favor of the defendants where
the plaintiff failed to carry his burden to establish that the
defendant had knowledge of a substantial risk to plaintiff's
health or safety from an inmate attacker). Here, plaintiff
has failed to allege defendants knew of a prior altercation
between the plaintiff and his attacker, or of any threats that
had been made against the plaintiff. Fernandez v. N.Y.C.
Dep't of Corr., No. 08 Civ. 4294, 2010 WL 1222017, at *4
(S.D.N.Y. Mar. 29, 2010); Clark v. Gardner, 256 F. Supp.3d
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154, 168 (N.D.N.Y. 2017). Because plaintiff has alleged no
facts suggesting that C.O. Moore knew of a particular risk to
the plaintiff's safety, he has failed to raise a material question
of fact as to whether C.O. Moore was deliberately indifferent,
and summary judgment is warranted. Parris v. New York State
Dep't Corr. Servs., 947 F. Supp.2d 354, 363 (S.D.N.Y. 2013).
*9 WHEREFORE, based on the findings above, it is
RECOMMENDED, that Defendant's motion for summary
judgment (Dkt. No. 16) be GRANTED, and the complaint be
DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2023 WL 4710869
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Jackson v. Moore
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:21-CV-01001
Jackson v. New York State Department of Corrections et
al
— N.D.N.Y. Sep. 10, 2021 Docket
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Jackson v. Moore
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History (3)
Direct History (2)
1. Jackson v. Moore
2023 WL 4710869 , N.D.N.Y. , Apr. 14, 2023
Report and Recommendation Adopted by
2. Jackson v. Moore
2023 WL 4711091 , N.D.N.Y. , July 24, 2023
Related References (1)
3. Jackson v. Moore
2022 WL 22888891 , N.D.N.Y. , Feb. 09, 2022
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Price v. Oropallo, Not Reported in F.Supp.3d (2014)
2014 WL 4146276
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Sheffer v. Fleury, N.D.N.Y., September 18, 2019
2014 WL 4146276
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Chris PRICE, Plaintiff,
v.
J. OROPALLO, Sergeant, Upstate Corr. Facility;
Norman H. Bezio, Dir. of Shu, Inmate Disciplinary
Program, Nys Docs; and Phillip Battiste, Dir.
of Security Staff, Nys Docs, Defendants.
No. 9:13–CV–0563 (GTS/TWD).
|
Signed Aug. 19, 2014.
Attorneys and Law Firms
Chris Price, Auburn, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of
New York, Keith J. Starlin, Esq., Assistant Attorney General,
of Counsel, Albany, NY, for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this pro se prisoner civil
rights action filed by Chris Price (“Plaintiff”) against the three
above-captioned New York State correctional employees
(“Defendants”), are Defendants' motion for summary
judgment, and United States Magistrate Judge Therese
Wiley Dancks' Report–Recommendation recommending that
Defendants' motion be granted. (Dkt.Nos.25, 28.) Plaintiff has
not filed an Objection to the ReportRecommendation, and
the deadline by which to do so has expired. (See generally
Docket Sheet.) After carefully reviewing the relevant filings
in this action, the Court can find no clear error in the Report–
Recommendation: Magistrate Judge Dancks employed the
proper standards, accurately recited the facts, and reasonably
applied the law to those facts. (Dkt. No. 28.) To that analysis,
the Court would add only two points.
First, with regard to Plaintiff's claims against Defendants
Battiste and Bezio, the Court notes that the verified Complaint
does not allege facts plausibly suggesting, or adduce
admissible evidence establishing, that Plaintiff sent letters to
Battiste or Bezio at an appropriate address and by appropriate
means. (Dkt. No. 1, at ¶ 6.) In any event, even if he had
done so, the Complaint alleges facts plausibly suggesting, or
adduces admissible evidence establishing, that a response by
officials at his correctional facility followed the sending of
the letters. (Id.)
Second, as an alternative ground for the dismissal of the
Complaint, the Court accepts Defendants' failure-to-exhaust
argument because, even assuming Plaintiff was in fact told
that his complaint was not grievable, he filed the grievance
and knew he was “suppose[d] to ... receive[ ]” a response to it.
(Dkt. No. 1, at 4.) More important, he could have, and should
have, filed an appeal from his non-response (which he did not
do). 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within
the time limits may be appealed to the next step.”); see also
Smith v. Kelly, 985 F.Supp.2d 275, 281–82 (N.D.N.Y.2013)
(collecting cases). Such an appeal could have proved fruitful,
given that the issue was indeed grievable. (Dkt. No. 25,
Attach. 5. at ¶ 3 [Hale Decl.].)
For all of these reasons, Defendants' motion is granted, and
Plaintiff's Complaint is dismissed.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks' Report–
Recommendation (Dkt. No. 28) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 25) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED in its entirety.
ORDER and REPORT–RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge.
Pro se Plaintiff Chris Price, an inmate currently confined
in the Auburn Correctional Facility, has commenced this
action pursuant to 42 U.S.C. § 1983 alleging Defendants
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2014 WL 4146276
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failed to protect him in violation of his Eighth Amendment
rights by placing a member of a rival gang in his cell. (Dkt.
No. 1.) Plaintiff has sued Corrections Sergeant Jon Oropallo
(“Oropallo”); Phillip Battiste (“Battiste”), New York State
Department of Corrections and Community Supervision
(“DOCCS”) Director of Security Staff; and Norman R.
Bezio (“Bezio”), DOCCS Director of Special Housing/
Inmate Disciplinary Program Id. at 1.
*2 Defendants filed an Answer to Plaintiff's Complaint (Dkt.
No. 12) and have now moved for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No.
25.) Plaintiff has not opposed the motion or sought additional
time within which to do so. For the reasons set forth below,
the Court recommends that Defendants' motion for summary
judgment be granted.
I. BACKGROUND
While Plaintiff was confined at the Upstate Correctional
Facility (“Upstate”), his membership in the Crips gang was
known to prison officials. (Dkt. No. 1 at ¶ 7.) Plaintiff
expressed concerns for his safety to officials at Upstate,
at least in part because according to Plaintiff, Defendant
Oropallo had previously forced him to fight with members of
the Bloods, a rival gang. Id. at 6. In a Declaration submitted
in support of Defendants' motion for summary judgment,
Oropallo denies ever having forced Plaintiff to fight with
another inmate. (Dkt. No. 25–4 at ¶ 4.)
The evidence shows that Oropallo did issue a misbehavior
report on Plaintiff on December 8, 2011, after observing
Plaintiff and his cell mate Williams fighting. (Dkt. No. 25–4
at ¶ 8 and p. 23.) 1 The fight investigation form reveals that
Plaintiff did not want protection and neither he nor Williams
wanted to press charges in connection with the fight. Id.
at p. 24. Donald Uhler (“Uhler”), Deputy Superintendent
of Security at Upstate, reviewed Plaintiff's security file and
found no request by him for protective custody. (Dkt. No. 25–
3 at ¶ 10.)
1 Page numbers cited herein are those assigned by the
Case Management/Electronic Case File (CM/ECF)
system.
Plaintiff claims that as a result of being forced to fight
members of the Bloods gang, he filed a grievance and began
speaking with officials at Upstate regarding his safety in the
fall of 2011. (Dkt. No. 1 at ¶ 6.) Plaintiff's file from Upstate
contains a December 12, 2011, “To Whom it May Concern”
letter in which Plaintiff disclosed that he had been forced to
fight on December 8, 2011, and had been threatened with a
scalpel by members of the Bloods. (Dkt. No. 25–3 at ¶ 4 and
p. 6.) In his December 12, 2011, letter Plaintiff indicated that
he was writing to create a paper trail regarding safety issues
he had raised with corrections officers and sergeants. (Dkt.
No. 25–3 at p. 6.) Plaintiff wrote:
I used to be a well known crip gang
member. The bloods still label me
as being a crip gang member. So to
back myself up, I'm [writing] to all
people that I think should be notified
of my situation of safety. On the 8th of
this month for this particular reasons
I stated above, I was [threatened] and
forced to fight. I fear for my life while
I'm here [incarcerated]. I just wanna
do the time that I have and hopeful[ly]
get a reversal on my appeals. Are
there any ways that, I can be bunked
up with someone who isn't labeled a
bloods gang member, because I was
threatened with a scalpel. I notified the
proper personnel and I wasn't taken
serious [ly] until I started kicking the
cell door I was in, I was taken out to
be forced to fight in another cell. I fear
I'm a get hurt or I'm a hurt someone.
Can you help me? Thank you for your
time and [patience].
*3 Id.
According to Uhler, Lt. Lumbard (“Lumbard”) investigated
the letter on December 21, 2011. Id. at ¶ 5. Lumbard reported
that Plaintiff told him that he was a member of the Crips gang
and had been having trouble with members of the Bloods
gang. Id. at p. 5. When asked about being threatened with
a scalpel, Plaintiff refused to provide any information. Id.
Plaintiff did tell Lumbard that he was getting along well with
his current cell mate, and that they had no issues. Id. Lumbard
indicated that the cell block staff had been notified about the
situation and advised to leave Plaintiff with his cell mate and,
if possible, to move the cell mate with him when he was
moved upstairs. Id.
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Plaintiff was dissatisfied with the resolution of his grievance
and claims to have written to Defendants Battiste and Bezio
about his safety concerns. Id. Plaintiff was subsequently
told by Upstate officials that the safety issues of which he
had complained would be handled, and he would not have
to worry about being placed in the same cell with known
members of the Bloods. Id. Nonetheless, on August 9, 2012,
inmate Adams, a member of the Bloods, was brought in to
bunk with Plaintiff. (Dkt. No. 1 at ¶ 6 .) Plaintiff and Adams
got into what both described as a gang related fight in the cell
within minutes after the officer placing Adams in the cell left,
and Plaintiff sustained a non-displaced fracture of his nose
and a laceration on his nose which required stitches. Id .; Dkt.
Nos. 25–3 at 12; 25–4 at 8–9; 26 at 8–12.
Prior to Adams being placed in the cell with Plaintiff,
Oropallo had no personal knowledge or information that
would have led him to believe that Adams was gang related or
would pose a threat to Plaintiff. (Dkt. No. 25–4 at ¶ 7.) Adams
had never told Oropallo he was in a gang, and nothing about
the December 8, 2011, fight between Plaintiff and Williams
led Oropallo to believe Adams would be a threat to Plaintiff.
Id. at ¶ 10. Furthermore, the assignment of inmates for double
cell housing was not within the scope of Oropallo's authority.
Id. at ¶ 9.
DOCCS maintains an “enemies” list for inmates based upon
information provided by the inmate and from his disciplinary
record. Id. at ¶ 6. Uhler has explained in his Declaration
that DOCCS does not recognize street gangs, and inmates
frequently do not disclose gang affiliations to prison officials,
although if there is information of gang affiliation, a notation
might appear on the inmate's personal characteristics screen,
his security file, or be made by a counselor during intake. Id.
at ¶ 7. Uhler reviewed the DOCCS files on Adams and found
no notations indicating that he was gang affiliated. Id. at ¶
8; see also Adams' Personal Characteristics Form and Inmate
Security Classification Form, neither of which identifies him
as a member of the Bloods gang. Id. at pp. 9–10.
A misbehavior report was filed against Plaintiff as a result
of the August 9, 2012, fight. (Dkt. No. 25–4 at 8.) Plaintiff
was found guilty of violent conduct and assault and was given
four months in the Special Housing Unit, loss of packages,
commissary, ear phones, recreation, and good time, with two
months suspended as an incentive for Plaintiff to improve his
behavior. Id. at 5–6.
II. APPLICABLE LEGAL STANDARDS
A. General Legal Standards for Summary Judgment
Motions
*4 Summary judgment may be granted only if the
submissions of the parties taken together “show that there
is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party
moving for summary judgment bears the initial burden of
showing, through the production of admissible evidence,
that no genuine issue of material fact exists. Salahuddin v.
Goord, 467 F.3d 263, 272–73 (2d Cir.2006). A dispute of
fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the
nonmoving party required to produce evidence demonstrating
that genuine issues of material fact exist. Salahuddin, 467
F.3d at 272–73. The nonmoving party must do more than
“rest upon the mere allegations ... of the [plaintiff's] pleading”
or “simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 585–86, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). “Conclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of fact.
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998).
A party opposing summary judgment is required to submit
admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72,
81 (2d Cir.2010) (“It is well established that in determining
the appropriateness of a grant of summary judgment, [the
court] ... may rely only on admissible evidence.”) (citation
and internal quotation marks omitted). A plaintiff's verified
complaint is to be treated as an affidavit. 2 Colon v. Coughlin,
58 F.3d 865, 872 (2d Cir.1995) (“A verified complaint is to
be treated as an affidavit ... and therefore will be considered
in determining whether material issues of fact exist ....”)
(citations omitted).
2 Plaintiff's Complaint (Dkt. No. 1) was properly
verified under 28 U.S.C. § 1746. See LeBoeuf,
Lamb, Greene & MacRae, L.L.P. v. Worsham, 185
F.3d 61, 65–66 (2d Cir.1999) (use of the language
“under penalty of perjury” substantially complies
with 28 U.S.C. § 1746).
In determining whether a genuine issue of material fact exists,
the court must resolve all ambiguities and draw all reasonable
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inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008).
Where a party is proceeding pro se, the court is obliged to
“read [the pro se party's] supporting papers liberally, and ...
interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
However, “a pro se party's ‘bald assertion,’ unsupported by
evidence, is not sufficient to overcome a motion for summary
judgment.” Cole v. Artuz, No. 93 Civ. 5981(WHP)(JCF), 1999
WL 983876 at *3, 1999 U .S. Dist. LEXIS 16767 at *8
(S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d
18, 21 (2d Cir.1991)). 3
3 Copies of unpublished decisions cited herein will
be provided to Plaintiff in accordance with Lebron
v. Sanders, 557 F.3d 76, 79 (2009) (per curiam ).
[Editor's Note: Attachments of Westlaw case copies
deleted for online display.]
B. Summary Judgment When a Pro Se Plaintiff Fails
to Oppose the Motion
Plaintiff has not opposed Defendants' summary judgment
motion. N .D.N.Y. L.R. 56.2 requires the moving party to
notify a pro se litigant of the consequences of failing to
respond to the summary judgment motion. 4 Where a party
has been given satisfactory notice of the consequences of
failing to respond to a motion for summary judgment, the
nonmovant's failure to respond to the movant's statement of
material facts will result in the facts set forth in the statement
being accepted as true to the extent they are supported by the
evidence in the record. 5 See L.R. 7.1(a) (3) (“The Court shall
deem admitted any properly supported facts set forth in the
Statement of Material Facts that the opposing party does not
specifically controvert.” ) (emphasis in original).
4 A Notice of the Consequences of Failing to
Respond to a Summary Judgment Motion was
served with Defendants' motion papers in this case.
(Dkt. No. 25 at 3.)
5 See Vermont Teddy Bear Co., Inc. v. 1–800
Beargram Co., 373 F.3d 241, 244 (2d Cir.2004)
(“[I]n determining whether the moving party has
met [its] burden of showing the absence of a
genuine issue for trial, the district court may
not rely solely on the statement of undisputed
facts contained in the moving party's Rule 56.1
Statement. It must be satisfied that the citation to
evidence in the record supports the assertion.”)
(citation omitted).
*5 A pro se plaintiff's failure to oppose a summary judgment
motion does not mean that the defendant's motion is to
be granted automatically. An unopposed summary judgment
motion may properly be granted “only if the facts as to which
there is no genuine dispute show that the moving party is
entitled to judgment as a matter of law.” Champion v. Artuz,
76 F.3d 483, 486 (2d Cir.1996) (internal quotes and citations
omitted).
A district court has no duty to perform an independent review
of the record to find proof of a factual dispute where the
nonmovant fails to respond to a summary judgment motion.
See Amnesty America. v. Town of West Hartford, 288 F.3d
467, 470 (2d Cir.2000). This is so even where a plaintiff is
appearing pro se because even pro se plaintiffs must obey
the Court's procedural rules. See McNeil v. United States,
508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
Although not obligated to do so, the Court has elected
to conduct a review of the entire record in this case. See
Monahan v. New York City Dept. of Corrections, 214 F.3d
275, 292 (2d Cir.2000) (a court may, in its discretion, “choose
to conduct an assiduous review of the record” even when a
party has failed to file a statement of material facts). Because
Plaintiff's Complaint is verified, the Court will treat it as an
affidavit in opposition to Defendants' motion. See Colon, 58
F.3d at 872.
III. ANALYSIS
A. Administrative Exhaustion
Defendants argue that they are entitled to summary judgment
based upon Plaintiff's failure to exhaust his administrative
remedies with regard to Defendants' alleged failure to protect
him from a Bloods gang member in violation of his Eighth
Amendment rights. (Dkt. No. 25–6 at 5–6.)
1. Exhaustion Under The Prison Litigation Reform Act
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 ... or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.” 42 U .S.C. § 1997(e). The PLRA requires
“proper exhaustion” of prison administrative remedies, which
includes compliance with agency deadlines and procedural
rules. See Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378,
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165 L.Ed.2d 368 (2006). “[P]roper exhaustion ... means using
all steps that the agency holds out and doing so properly
(so that the agency addresses the issues on the merits).”
Id. Exhaustion is mandatory, and an inmate cannot satisfy
the PLRA's exhaustion requirement by filing an untimely or
administratively defective grievance or appeal. Id. at 84–85.
The DOCCS Inmate Grievance Procedure (“IGP”) has
three stages which prison inmates must complete. See N.Y.
Comp.Codes R. & Regs. tit. 7, § 701.5; see also Hernandez
v. Coffey, 582 F.3d 303, 305 (2d Cir.2009). First a grievance
complaint must be submitted to the Inmate Grievance
Resolution Committee (“IGRC”) for an initial determination
within twenty-one calendar days of the alleged occurrence.
Id. at § 701.5(a). Next, if the IGRC decision is adverse
to the inmate, he has seven calendar days to appeal to
the prison superintendent. Id. at § 701.5(c). If dissatisfied
with the superintendent's decision, the inmate has another
seven calendar days to appeal the superintendent's decision
to the Central Office Review Committee (“CORC”). Id. at §
701 .5(d).
*6 An inmate must follow through on all three steps to
complete the exhaustion process. See Morrison v. Stefaniak,
523 F. App'x 51 (2d Cir.2013) (summary order) (upholding
dismissal of complaint because plaintiff failed to appeal
IGRC's decision); Belile v. Griffin, No. 9:11–CV0092 (TJM/
DEP), 2013 WL 1776086, at *3–4, 7, 2013 U.S. Dist. LEXIS
47137, at *10, 22–23 (N.D.N.Y. Feb.12, 2013) (plaintiff failed
to exhaust his administrative remedies because he had not
followed through on all of the steps, i.e., he did not appeal to
the superintendent of the facility or appeal any unfavorable
decision of the superintendent to CORC).
Because failure to exhaust is an affirmative defense,
defendants bear the burden of showing that a plaintiff has
failed to exhaust his available administrative remedies. See
Murray v. Palmer, No. 9:03–CV–1010 (GTS/GHL), 2010
WL 1235591, at *4, 2010 U.S. Dist. LEXIS 32014, at
* 16 (N.D.N.Y. Mar.31, 2010). If a defendant meets that
burden, however, a plaintiff's failure to exhaust does not
end the review. “[O]nce a defendant has adduced reliable
evidence that administrative remedies were available to
Plaintiff and that Plaintiff nevertheless failed to exhaust
those administrative remedies, Plaintiff must then ‘counter’
Defendants' assertion by showing exhaustion unavailability,
estoppel, or ‘special circumstances' [under Hemphill v. State
of New York, 380 F.3d 680, 686 (2d Cir.2004) ].” Murray,
2010 WL 1235591, at *4. Hemphill sets forth a three-part
inquiry for district courts. 6 First, courts must determine if
administrative remedies were in fact available to plaintiff.
In Hemphill, the Second Circuit stated that “[t]he test for
deciding whether the ordinary grievance procedures were
available must be an objective one: that is, would ‘a similarly
situated individual of ordinary firmness' have deemed them
available.” Hemphill, 380 F.3d at 688.
6 Subsequent to Hemphill, the Supreme Court
decided Woodford v. Ngo, 548 U.S. 81, 126 S.Ct.
2378, 165 L.Ed.2d 368 (2006). The question
addressed in Woodford was whether “a prisoner
can satisfy the [PLRA's] exhaustion requirement
by filing an untimely or otherwise procedurally
defective administrative grievance or appeal.” Id.
at 83–84. The Supreme Court resolved the question
in the negative, explaining that PLRA requires
“proper exhaustion”—“using all steps that the
agency holds out, and doing so properly (so that the
agency addressed the issues on the merits).” Id. at
90 (citation omitted). Although the Second Circuit
has acknowledged that there is some question as
to whether the estoppel and special circumstances
inquiries in Hemphill survived Woodford, the Court
has as yet found it unnecessary to decide the
issue and appears to still be considering all three
Hemphill inquiries in exhaustion cases. See, e.g.,
Amador v. Andrews, 655 F.3d 89, 102–03 (2d
Cir.2011) (finding it unnecessary to decide whether
Hemphill is still good law because plaintiff had
failed to establish that defendants were estopped
from raising non-exhaustion as an affirmative
defense) (internal quotation marks omitted).
Second, courts must determine if the defendants are
estopped from presenting nonexhaustion as an affirmative
defense because they prevented the plaintiff inmate from
exhausting his administrative remedies by conduct such as
“ ‘beating him, threatening him, denying him grievance
forms and writing implements, and transferring him to
another correctional facility.’ “ Hemphill, 380 F.3d at 688
(citing Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir.2004)).
Generally, defendants cannot be estopped from asserting a
non-exhaustion affirmative defense based upon the actions
or inaction of other individuals. Murray, 2010 WL 1235591,
at *5 & n. 26 (collecting cases); McCloud v. Tureglio, No.
07–CV–0650, 2008 WL 1772305, at * 12, 2008 U.S. Dist.
LEXIS 124388, at *44 (N.D.N.Y. Apr. 15, 2008) (Lowe,
M.J.) (“None of those documents allege facts plausibly
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suggesting that Defendant's own actions inhibited Plaintiff's
exhaustion of remedies during the time in question.”). Third,
the Second Circuit explained in Hemphill that there are certain
“special circumstances” in which even though administrative
remedies may have been available and the defendants may
not be estopped from asserting a nonexhaustion defense, the
inmate's failure to exhaust may be justified. Hemphill, 380
F.3d at 686.
2. Exhaustion Analysis
*7 In his Complaint, Plaintiff has alleged that he asked to file
a grievance with regard to the placement of a known Bloods
gang member in his cell. (Dkt. No. 1 at ¶ 4.) According to
Plaintiff, he was told by the grievance officer that the issue
was not grievable and, as a result, never received a response
to his grievance. Id. Jeffrey Hale (“Hale”), Assistant Director
for the DOCCS IGP, has stated in his Declaration that the
IGP is the appropriate vehicle for inmates to use to address
issues regarding the person with whom they are housed and
complaints against staff. (Dkt. No. 25–5 at ¶ 3.) Defendants
have not, however, submitted evidence disputing Plaintiff's
claim that he was told his complaint was not grievable.
Instead, Defendants have focused on a grievance filed by
Plaintiff with regard to the medical care he received for
the injuries he sustained in the fight with Adams and have
relied upon Plaintiff's failure to appeal from the denial of that
grievance as evidence of failure to exhaust the claim asserted
in this lawsuit. (Dkt. Nos. 25–3 at ¶ 9 and pp. 11–13; 25–
6 at 6.) In Grievance No. UST–50552, Plaintiff referenced
the fight in his cell but only in the context of the fight as the
cause of his broken nose. Id. at p. 11. Plaintiff's complaint
was that it took five days for the medical staff at Upstate to
send him out for x-rays. Id. The investigative report on the
grievance references only the medical care given Plaintiff,
and the grievance was denied solely on the grounds that there
was no urgent need for an x-ray. Id. at p. 13. In short, the
grievance has no direct relevance to Plaintiff's exhaustion of
the failure to protect claim asserted in this lawsuit.
The relevant exhaustion issue on this motion is whether the
allegation in Plaintiff's Complaint regarding his unsuccessful
attempt to grieve the failure to protect issue is sufficient by
itself to raise an issue of fact under any of the Hemphill
considerations. A number of district courts in the Second
Circuit have found either that the IGP is unavailable to
an inmate who has been told by a prison official that his
complaint was not grievable, or that the misinformation
constitutes a special circumstance excusing exhaustion under
Hemphill. 7 See, e.g., Partee v. Goord,, No. 06–15528, 2007
WL 2164529(SAS), at *4, 2007 U.S. Dist. LEXIS, at *14
(S.D.N.Y. July 25, 2007) (excusing exhaustion requirement
because plaintiff was told in reply to his grievance that his
claim was outside the purview of the IGRC, and he reasonably
understood this to mean his dispute was not grievable); Lewis
v. Cunningham, No. 05–9243(GBD), 2007 WL 2412258, at
*2, 2007 U.S. Dist. LEXIS 62346, at *5 (S.D.N.Y. Aug.23,
2007) (finding special circumstances justifying failure to
exhaust remedies because a supervisor told plaintiff that filing
a grievance was not the proper way to address a complaint,
and to instead write a letter to the Chief Medical Officer at the
Department of Health, which he did); Jeffers v. Goord, No.
9:99–CV–0335 (FJS/GHL), 2005 WL 928628, at *6, 2005
U.S. Dist. LEXIS 39309, at *16–17 (N.D.N.Y. Apr.4, 2005)
(“[p]rison official may prevent a prisoner from utilizing a
remedy by incorrectly representing to the prisoner that his
complaint is not grievable, or that it is grievable only through
another avenue.”).
7 Courts have noted that there is significant overlap
in the three Hemphill considerations. See, e.g.,
Barksdale v. Frenya, No. 9:10–CV–00831 (MAD/
DEP), 2012 WL 4107805, at *6 n. 11, 2012
U.S. Dist. LEXIS 134738, at *21 n. 11 (N.D.N.Y.
Sept.19, 2012) (“In practicality these three prongs
of the prescribed test, though perhaps intellectually
distinct, plainly admit of significant overlap.”). A
failure to exhaust as a result of being given false
information on whether a complaint was grievable
by a non-defendant could arguably fit within either
the first or third consideration.
*8 Defendants' failure to submit evidence refuting or
explaining Plaintiff's claim that he was told his complaint
was not grievable leaves material issues of fact regarding the
applicability of one or more of the Hemphill considerations.
Therefore, the Court recommends that Defendants' request
for summary judgment on the grounds that Plaintiff failed
to exhaust his administrative remedies be denied without
prejudice.
B. Battiste and Bezio
The Eighth Amendment to the United States Constitution
“requires prison officials to take reasonable measures to
guarantee the safety of inmates in their custody.” Hayes v.
New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir.1996).
Prison officials are liable under the Eighth Amendment for
harm incurred by an inmate if they act with deliberate
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indifference to the inmate's safety. Morales v. New York State
Dep't of Corr., 842 F.2d 27, 30 (2d Cir.1988) (“[A] state
prison guard's deliberate indifference to the consequences of
his conduct for those under his control and dependent upon
him may support a claim under § 1983.”); see also Hendricks
v. Coughlin, 942 F.2d 109, 113 (2d Cir.1991) (“[A]n inmate's
claim that prison officials failed, as a result of their deliberate
indifference, to protect [the inmate] from the violent actions
of other inmates may state a viable § 1983 cause of action.”);
Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) (“The
failure of custodial officers to employ reasonable measures to
protect an inmate from violence by other prison residents has
been considered cruel and unusual punishment”); Wassmann
v. County of Ulster, 528 F. App'x 105, 106 (2d Cir.2013)
(“Officers at correctional facilities have a duty to protect
inmates from violence at the hands of other inmates.”) (citing
Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994)).
To prevail on a failure to protect claim, an inmate must
show that (1) he was incarcerated under conditions posing
a substantial risk of serious harm; and (2) prison officials
exhibited deliberate indifference. Farmer, 511 U.S. at 837.
In order to establish deliberate indifference where a prison
official has failed to protect an inmate from violence by
another inmate, a plaintiff must prove that the defendant
official actually knew of and disregarded an excessive risk
of harm to the plaintiff's safety. Hayes, 84 F.3d at 620. Even
assuming that the allegations in Plaintiff's Complaint are
sufficient to satisfy, or at least raise a question of fact on
the issue of substantial risk of harm, the summary judgment
record is devoid of evidence that Battiste and Bezio exhibited
deliberate indifference to Plaintiff's safety in placing Adams
in his cell.
The law is clear that “personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” McKinnon v. Patterson, 568
F.2d 930, 934 (2d Cir.1977). “Because vicarious liability is
inapplicable to ... § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.” Ashcroft
v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). (“Government officials may not be held liable
for the unconstitutional conduct of their subordinates under
a theory of respondeat superior.”). “Holding a position in a
hierarchical chain of command, without more, is insufficient
to support a showing of personal involvement.” Groves v.
Davis, No. 9:11–CV–1317 (GTS/RFT), 2012 WL 651919,
at *6, 2012 U.S. Dist. LEXIS 25367, at *22–23 (N.D.N.Y.
Feb.28, 2012) (citing McKinnon, 568 F.2d at 934); see also
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003) (a
“mere ‘linkage in the prison chain of command’ is insufficient
to implicate a state commissioner of corrections ... in a § 1983
claim”) (citing Ayers, 780 F.2d at 210). Therefore, “a plaintiff
must ... allege a tangible connection between the acts of a
defendant and the injuries suffered .” Bass v. Jackson, 790
F.2d 260, 263 (2d Cir.1986).
*9 The Second Circuit has held that personal involvement
by a supervisor necessary to state a claim under § 1983 may
be found where: “(1) the defendant participated directly in the
alleged constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or
custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising subordinates
who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that unconstitutional
acts were occurring.” Colon, 58 F.3d at 873. 8
8 The Supreme Court's decision in Ashcroft v. Igbal,
556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) has arguably nullified some of the
categories set forth in Colon. See Sash v. United
States, 674 F.Supp.2d 531, 543–44 (S.D.N.Y.2009)
(collecting cases). However, the Second Circuit has
yet to issue a decision addressing Igbal's effect
on the Colon categories, and I will assume for
purposes of this motion that Colon remains good
law.
Plaintiff claims that he wrote to Defendants Battiste and Bezio
with respect to his safety concerns with regard to sharing a
cell with a Bloods gang member after he was dissatisfied with
the response of Upstate officials to his complaints in the fall
or winter of 2011. (Dkt. No. 1 at ¶ 6.) According to Plaintiff
after he sent the letters to Battiste and Bezio he was told by
Upstate officials that his safety issue had been addressed. Id.
Battiste and Bezio did not submit evidence regarding whether
they received letters from Plaintiff and, if so, took any action
in response. Instead, they rely upon an attorney's declaration
stating upon information and belief that a search was made of
records in the DOCCS Central Office and no correspondence
to or from Plaintiff was found. (Dkt. No. 25–2 at ¶ 3.) The
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source of counsel's information and belief appears to be the
July 25, 2013, unsworn letter from a DOCCS senior attorney
annexed as an exhibit. Id. at p. 4.
“[O]nly admissible evidence need be considered by the trial
court in ruling on a motion for summary judgment.” Raskin v.
Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997); see also Salahuddin,
467 F.3d at 272–73 (movant bears the initial burden of
showing through the production of admissible evidence that
he is entitled to judgment as a matter of law). An attorney's
affidavit that is not based upon personal knowledge and relies
upon an attached letter not sworn as required by Rule 56(e)
is not admissible evidence and not properly considered on
a summary judgment motion. 9 See Beyah v. Coughlin, 789
F.2d 986, 989 (2d Cir.1986); see also Sepanski v. Jani–King,
Inc., No. 10–CV–518S, 2013 WL 4455412, at *2–3, *8, 2013
U.S. Dist. LEXIS 116437, at *8 (W.D.N.Y. Aug.16, 2013)
(holding that three unsworn letters submitted by plaintiff
could not be considered in connection with a motion for
summary judgment).
9 Statements in Defendants' Statement Pursuant
to Rule 7.1(a)(3) are deemed admitted on an
unopposed summary judgment motion only to
the extent they are supported by admissible
evidence. See Amaker v. Foley, 274 F.3d 677,
681 (2d Cir.2001) (“court may not rely solely
upon statement of undisputed facts in determining
whether movant has met this burden of showing
the absence of a genuine issue for trial; court
must be satisfied that the citation to evidence
in the record supports the assertion). Paragraph
13 of Defendants' Rule 7.1(a)(3) Statement (Dkt.
No. 25–1), stating that “[t]here is no evidence
to demonstrate that Defendants Bezio or Battiste
received correspondence from Plaintiff,” relies
upon an attorney's declaration that is not based
upon personal knowledge and an unsworn letter,
neither of which constitutes admissible evidence.
See Beyah v. Coughlin, 789 F.2d 986, 989 (2d
Cir.1986).
A movant's burden of demonstrating the absence of a question
of material fact remains the same where the motion is
unopposed. See Vt. Teddy Bear Co. v. 1–800 Beargram Co.,
373 F.3d 241, 244 (2d Cir.2004) (“If the evidence submitted
in support of the summary judgment motion does not meet
the movant's burden of production, then summary judgment
must be denied even if no opposing evidentiary matter is
presented.”) (citation and internal quotation marks omitted).
Defendants have not satisfied their burden of production with
respect to Plaintiff's claim that he wrote to Battiste and Bezio
regarding his concerns about Bloods.
*10 Nonetheless, because Plaintiff has not alleged facts in
his Complaint showing that Battiste or Bezio had knowledge
of, or personal involvement in, Adams being placed in a
cell with him, or that they were aware of Adams' Bloods
affiliation, he has failed to state an Eighth Amendment claim
against the two supervisory officials for failure to protect
him from the injuries he sustained in the fight with Adams.
See McKinnon, 568 F.2d at 934 (personal involvement in
constitutional deprivation is a prerequisite to an award of
damages under § 1983); Hayes, 84 F.3d at 620 (defendant
official must actually have known of and disregarded an
excessive risk of harm to the plaintiff's safety to establish
deliberate indifference).
Therefore, the Court recommends that Battiste and Bezio
be granted summary judgment dismissing the Complaint as
against them.
C. Oropallo
Even assuming, arguendo, that the allegations in Plaintiff's
Complaint are sufficient to satisfy, or at least raise a question
of fact, on the issue of substantial risk of harm, the evidence
in the summary judgment record establishes that Defendant
Oropallo did not know of and disregard an excessive risk of
harm to Plaintiff's safety in connection with Adams being
placed in Plaintiff's cell. See Hayes, 84 F.3d at 620. The prison
files on inmate Adams contained no notations indicating
that he was gang related. (Dkt. No. 25–3 at ¶ 8.) The
DOCCS “enemies” list did not identify Plaintiff and Adams
as enemies. Id. at ¶ 6. Moreover, Plaintiff's security file
contained no requirements for protective custody. Id. at ¶ 10.
According to Oropallo, prior to the altercation between
Plaintiff and Adams, he had no personal knowledge or
information that would have led him to believe that Adams
was gang affiliated or would pose a threat to Plaintiff. (Dkt.
No. 25–4 at ¶ 7.) Adams had not told Oropallo he was in
a gang before being placed in Plaintiff's cell. Id. at ¶ 10.
Moreover, the assignment of inmates in double cell housing
was not within Oropallo's authority. Id. at ¶ 9.
Since Plaintiff has failed to submit opposition to Defendants'
motion, the Court can look only to his verified Complaint
for evidence demonstrating that a genuine issue of material
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fact exists as to whether Oropallo knew of and disregarded
an excessive risk of harm to the plaintiff's safety. Id. Mere
allegations in Plaintiff's Complaint, especially conclusory
allegations or conjecture and speculation, are insufficient to
create a genuine issue of fact. See Matsushita, 475 U.S. at
585–86; Kerzer, 156 F.3d at 400.
None of the allegations in Plaintiff's verified Complaint
contradicts Defendants' evidence that prison records did not
identify Adams as a member of the Bloods gang, that Oropallo
had no knowledge that Adams was a member of the Bloods
gang at the time he was placed in Plaintiff's cell, and that
Oropallo had no authority with regard to the assignment of
inmates in double cells. Therefore, Plaintiff has failed to raise
a question of fact as to whether Oropallo was deliberately
indifferent to his safety, a necessary element of proof on an
Eighth Amendment claim for cruel and inhuman punishment
based upon a failure to protect. See Farmer, 511 U.S. at 837.
Therefore, the Court recommends that Oropallo's motion for
summary judgment be granted.
*11 ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary
judgment (Dkt. No. 25) be GRANTED; and it is further
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections
to the foregoing report. Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir.1993) (citing Small v. Sec'y of Health
and Human Servs., 892F.2d 15 (2d Cir.1989) (per curiam); 28
U.S.C. § 636(b) (1); Federal Rules of Civil Procedure 72, 6(a).
Filed June 18, 2014.
All Citations
Not Reported in F.Supp.3d, 2014 WL 4146276
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Price v. Oropallo
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Filings (1)
Title PDF Court Date Type
1. Docket 9:13cv00563
PRICE v. OROPALLO ET AL
— N.D.N.Y. May 15, 2013 Docket
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Price v. Oropallo
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Shabazz v. Bailey, Not Reported in Fed. Supp. (2023)
2023 WL 5779533
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 5779533
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael Aziz Zarif SHABAZZ, Plaintiff,
v.
BAILEY, Defendant.
9:20-cv-00057 (LEK/TWD)
|
Signed June 28, 2023
Attorneys and Law Firms
MICHAEL AZIZ ZARIF SHABAZZ, Plaintiff, pro se, P.O.
Box 1312, Mount Vernon, NY 10551.
LETITIA JAMES, New York State Attorney General, JOHN
F. MOORE, ESQ., Ass't Attorney General, Counsel for
Defendant, The Capitol, Albany, NY 12224.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
*1 This matter has been referred for a report and
recommendation by the Honorable Lawrence E. Kahn, Senior
United States District Judge, pursuant to 28 U.S.C. § 636(b)
and Local Rule 72.3(c). Before the Court is Defendant's
motion for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. (Dkt. No. 101.) For the
reasons set forth below, the Court recommends granting
Defendant's motion.
I. BACKGROUND
A. Procedural History
On December 19, 2019, Michael Aziz Zarif Shabazz, a/k/
a Michael Hurley (DIN 72-B-0089), commenced this action
pursuant to 42 U.S.C. § 1983 in the Southern District of New
York (“SDNY”) alleging wrongdoings while he was in the
custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”) at Upstate Correctional
Facility (“Upstate”). (Dkt. No. 2.) On January 9, 2020,
SDNY Chief District Judge Colleen McMahon issued an
Order transferring this action to this District. (Dkt. No. 3.)
Upon receipt of the action in this District, Judge Kahn
granted Plaintiff's application to proceed in forma pauperis,
accepted the complaint for filing, and ordered only Plaintiff's
Eighth Amendment conditions of confinement and deliberate
medical indifference claims asserted against Corrections
Officer (“CO”) Bailey survived sua sponte review. (Dkt. No.
5 at 15. 1 ) Defendant filed an answer. (Dkt. No. 14.)
1 Page citations herein are those assigned by
the Court's electronic filing system, CM/ECF.
Paragraph numbers are used where documents
identified by the CM/ECF docket number contain
consecutively numbered paragraphs.
Following discovery, Defendant filed the instant summary
judgment motion on January 6, 2023. (Dkt. No. 101. 2 )
Defendant argues he should be granted summary judgment
because Plaintiff did not exhaust his available administrative
remedies prior to the filing of this action. (Dkt. No. 101-4
at 11-17.) Defendant further argues summary judgment is
warranted on the merits. Id. at 17-24. Plaintiff has filed a
response. (Dkt. No. 107. 3 ) Defendant filed a reply. (Dkt. No.
109.)
2 Defendant's submission includes a Notice of
Motion (Dkt. No. 101); Declaration of John F
Moore, AAG, with exhibits (Dkt. Nos. 101-1,
101-2); Statement of Material Facts (Dkt. No.
101-3); Memorandum of Law (Dkt. No. 101-4);
Appendix of Unreported Cases (Dkt. No. 101-5);
Declaration of Defendant Mark Bailey with
exhibits (Dkt. No. 101-6); Declaration of Cassie
Bayne with exhibits (Dkt. No. 101-7); and
Declaration of Rachael Seguin with an exhibit
(Dkt. No. 101-8).
3 Plaintiff's submission includes a Response (Dkt.
No. 107); Memorandum of Law (Dkt. No.
107-1); Exhibits (Dkt. No. 107-2); and Responding
Declaration (Dkt. No. 107-3).
B. Facts
The verified complaint alleges CO Bailey “contaminated
and poisoned” Plaintiff's food during the afternoon shift on
October 26, 2016, at Upstate. (Dkt. No. 2 at 6.) As a result,
Plaintiff “experienced and suffered unbearable [physical] and
extreme stomach pain.” Id. at 7. During subsequent rounds
on October 26, 2016, CO Bailey ignored Plaintiff's requests
for emergency medical attention. Id. at 8-9. Approximately
seven hours later—during the “late night shift”—Plaintiff was
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provided medical attention. Id. at 9-10. He stayed overnight in
the prison hospital and was transferred to an outside hospital
the next morning. Id. at 9-10. “Tubes were ... used to ... drain
and to remove some of the poison from [Plaintiff's] body,”
and Plaintiff later underwent surgery, where “at least a foot
of [his] intestines [were] ... removed.” Id. As a result of the
surgery, Plaintiff continues to experience physical pain, as
well as psychological and emotional trauma. Id. at 11.
*2 In his declaration, CO Bailey states that on October 26,
2016, he worked at Upstate in the 11 Building (“Unit 11”)
from 2:00 p.m. to 10:00 p.m. (Dkt. No. 101-6 at ¶ 4.) CO
Bailey categorically denies the material allegations of the
complaint. To that end, CO Bailey states:
I did not poison, contaminate or otherwise tamper with
Plaintiff's food on October 26, 2016, or at any time.
I have no hand in preparing food for incarcerated
individuals. I have no knowledge of anyone else, including
any nurse on duty on October 26, 2016, or at any other
time, poisoning, contaminating or otherwise tampering
with Plaintiff's food.
On October 26, 2016, I would have been involved in
passing out either meals or juice to the incarcerated
individuals on Unit 11. The log annexed as Exhibit A
indicates that this occurred at 4:30 p.m. on October 26,
2016 (“Rounds in progress/chow being served”). Rounds
would have occurred every half-hour during the shift I
worked on October 26, 2016.
At no time during the remainder of my shift on October 26,
2016[,] did Plaintiff advise me that he needed emergency
medical attention, or wished to see the nurse. If he had, I
would have radioed the request for medical attention to the
block nurse, and that would have been reflected in the log
annexed as Exhibit A, which it is not.
(Dkt. No. 101-5 at ¶ 5. 4 )
4 Internal citations and emphasis omitted; spacing
added for ease of reading.
CO Bailey also points out:
If Plaintiff had needed medical care in the hours following
the distribution of chow on October 26, 2016, he could
have also advised the nurse. According to the Unit 11
log book for October 26, 2016, at 7:30 p.m. the nurse
walked the unit to distribute meds and pick up any sick call,
and the Plaintiff could have requested medical attention or
submitted a sick call at that point. There is no indication in
the log that he did so at that time.
The log book does indicate that at 10:00 p.m. on October
26, 2016, Plaintiff was given medical attention from the
nurse on duty. (“2200 Rounds/Nurse on block checked
on Inmate Hurley 72B008 who complained about food
poisoning. After talking to nurse appears OK”). Plaintiff
saw the nurse again at 11:10 (2310 entry), and was taken to
the infirmary at 11:37 (2337 entry).
Id. at ¶¶ 6-7. 5
5 Internal citations and emphasis omitted; spacing
added for ease of reading.
During his deposition, Plaintiff admitted it was possible
a nurse gave him antacids at 10:05 p.m. “after the shift
change” and that he saw the nurse again after 11:00 p.m.
and was brought to the infirmary. (Dkt. No. 101-2 at 92-95.)
There, he was seen by medical personnel. Id. at 96-97.
The next morning, on October 27, 2016, he was taken
to an outside emergency room. Id. at 97-98. Plaintiff was
diagnosed with an intestinal/bowel obstruction at Alice Hyde
Medical Center, and was ultimately treated with surgery. Id.
at 98-99, 104-06. Plaintiff agreed he was diagnosed with an
intestinal obstruction and that the doctors never used the word
“poisoned.” Id. at 106-07. Plaintiff was discharged from Alice
Hyde Medical Center on November 5, 2016. Id. at 107-08.
Defendant also submits detailed affidavits of the process for
exhausting inmate grievance complaints. (Dkt. Nos. 101-7,
101-8.) Those affidavits, and the records attached thereto,
show there is a grievance procedure available to inmates
at Upstate known as the Incarcerated Grievance Program
(“IGP”) which involves three steps: (1) complain to the
Incarcerated Grievance Resolution Committee (“IGRC”) at
the individual facility; (2) appeal to the Superintendent of
the facility; and (3) appeal to the Central Office Review
Committee (“CORC”). (Dkt No. 101-3 at ¶¶ 2-10.) Plaintiff
was aware of the grievance procedure and as of May 6, 2020,
had appealed 256 grievances to CORC. Id. at ¶ 11.
*3 Plaintiff's grievance records at Upstate indicate he filed
grievance number UST-59727-16, alleging that, amongst
other things not at issue in this lawsuit, on October 26, 2016,
CO Bailey contaminated Plaintiff's food, after which Plaintiff
allegedly became sick, and CO Bailey ignored Plaintiff's
requests for medical attention. Id. at ¶ 18. That grievance was
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denied by the Superintendent based on a finding of no staff
misconduct. Id. at ¶¶ 19-20. There is no record of Plaintiff
appealing the grievance to CORC. Id. at ¶¶ 21-24.
II. DISCUSSION
A. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is warranted if “there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986).
The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v.
Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is
“material” if it “might affect the outcome of the suit under the
governing law,” and is genuinely in dispute “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys
v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The
movant may meet this burden by showing the nonmoving
party has “fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party
must move forward with specific facts showing there is a
genuine issue for trial. Salahuddin, 467 F.3d at 273. In that
context, the nonmoving party must do more than “simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “Conclusory allegations,
conjecture and speculation ... are insufficient to create a
genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396,
400 (2d Cir. 1998).
The Second Circuit instructs that on summary judgment
motions, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find
for the plaintiff.” Jeffreys, 426 F.3d at 554 (emphasis in
original). In other words, “a nonmoving party must offer
some hard evidence showing that [his] version of the events
is not wholly fanciful.” Id. (citation and internal quotation
marks omitted). Accordingly, statements “that are devoid of
any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists,
the court must resolve all ambiguities and draw all reasonable
inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
Where a party is proceeding pro se, the court is obligated to
“read [the pro se party's] supporting papers liberally, and ...
interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
However, that status “does not relieve [a pro se] plaintiff of
his duty to meet the requirements necessary to defeat a motion
for summary judgment.” Jorgensen v. Epic/Sony Records, 351
F.3d 46, 50 (2d Cir. 2003).
*4 In applying the summary judgment standard, the district
court should not weigh evidence or assess the credibility of
witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614,
619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d
Cir. 1996) (“Assessments of credibility and choices between
conflicting versions of the events are matters for the jury, not
for the court on summary judgment.”).
B. Local Rule 56.1
Local Rule 56.1(a) requires a party moving for summary
judgment to file and serve a Statement of Material Facts.
L.R. 56.1(a). In turn, Local Rule 56.1(b) mandates that
the party opposing a motion for summary judgment “file a
separate Response to the Statement of Material Facts. The
opposing party response shall mirror the movant's Statement
of Material Facts by admitting and/or denying each of the
movant's assertions in a short and concise statement, in
matching numbered paragraphs.” L.R. 56.1(b). “Each denial
shall set forth a specific citation to the record where the factual
issue arises.” Id.; see Lee v. City of Troy, 520 F. Supp. 3d 191,
198 (N.D.N.Y. 2021) (“Because a naked denial of a fact the
movant claims to be undisputed would do little to help the
Court, the opposing party must support every denial with a
citation to record evidence supporting a genuine dispute of
material fact.”). “The Court may deem admitted any properly
supported facts set forth in the Statement of Material Facts
that the opposing party does not specifically controvert.” L.R.
56.1(b) (emphasis omitted).
Here, Defendant filed and served a 47-paragraph Rule 56.1
Statement of Material Facts. (Dkt. No. 101-3.) In opposing
Defendant's motion, Plaintiff failed to respond to Defendant's
Rule 56 Statement of Material Facts. (See generally Dkt. No.
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107. 6 ) Plaintiff's failure to provide a response in accordance
with Local Rule 56.1(b) permits this Court to deem admitted
Defendant's properly supported facts that Plaintiff does not
specifically controvert. See L.R. 56.1(b); see also T.Y. v. New
York City Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (“A
nonmoving party's failure to respond to a Rule 56.1 statement
permits the court to conclude that the facts asserted in the
statement are uncontested and admissible.”). The Court “may
in its discretion opt to ‘conduct an assiduous review of the
record’ even where one of the parties has failed to file such
a statement.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir. 2001) (citation omitted).
6 As pointed out by Defendant, Plaintiff filed a
document titled “Responding Declaration” (Dkt.
No. 107-3), which on its face appears to be a 13-
pargarph declaration in response to the Attorney
Declaration of John F. Moore, AAG (Dkt. No.
101-1), not the 47-paragraph Rule 56 Statement
(Dkt. No. 101-3). (Dkt. No. 109 at 6.)
Because Plaintiff did not comply with Local Rule 56.1(b),
the facts set forth in Defendant's Rule 56.1 Statement of
Material Facts that are supported by record evidence and
are uncontroverted by nonconclusory allegations in Plaintiff's
verified complaint and sworn opposition submission will be
accepted as true. See McAllister v. Call, No. 9:10-CV-610
(FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29,
2014) (finding allegations in plaintiff's verified complaint
sufficient to controvert facts in statement of material facts
on motion for summary judgment); Douglas v. Perrara,
No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3
(N.D.N.Y. Sept. 27, 2013) (“Because Plaintiff has failed to
raise any question of material fact, the Court will accept
the facts as set forth in Defendants’ Statement of Facts ...
supplemented by Plaintiff's verified complaint ... as true.”).
As to any facts not contained in Defendant's Statement
of Material Facts, the Court is “required to resolve all
ambiguities and draw all permissible factual inferences” in
favor of Plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.
2003).
C. Exhaustion of Administrative Remedies
*5 The Prison Litigation Reform Act (“PLRA”) requires an
inmate to exhaust all available administrative remedies prior
to bringing a federal civil rights action. 42 U.S.C. § 1997e(a).
The exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and regardless of the subject matter of
the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.
2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)),
abrogated on other grounds by Ross v. Blake, 578 U.S. 632
(2016). Inmates must exhaust their administrative remedies
even if they are seeking only money damages that are not
available in prison administrative proceedings. Id. at 675.
In order to properly exhaust an inmate's administrative
remedies, the inmate must complete the administrative review
process in accordance with the applicable state rules. Jones v.
Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo,
548 U.S. 81 (2006)). The PLRA requires “proper exhaustion,”
which means using all steps of the administrative process
and complying with “deadlines and other critical procedural
rules.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). Exhaustion
is an affirmative defense, and the burden of proof, at all
times, remains on the defendant. Coley v. Garland, No. 9:19-
CV-00382 (LEK/ATB), 2023 WL 346242, at *4 (N.D.N.Y.
Jan. 20, 2023).
The grievance procedure in New York is a three-tiered
process. The inmate must first file a grievance with the IGRC.
N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and
(b). An adverse decision of the IGRC may be appealed to
the Superintendent of the facility. Id. § 701.5(c). Adverse
decisions at the Superintendent's level may be appealed
to CORC. Id. § 701.5(d). Complaints of harassment are
handled by an expedited procedure which provides that such
grievances are forwarded directly to the Superintendent, after
which the inmate must appeal any negative determination to
the CORC. Id. §§ 701.8(h) & (I), 701.5.
“CORC is required to provide, through IGP staff, written
confirmation that an appeal has been received, and if the
inmate does not receive such confirmation within forty-five
days, he ‘should contact the IGP supervisor in writing to
confirm that the appeal was filed and transmitted to CORC.’
” Ruiz v. Link, No. 20-CV-0235, 2022 WL 3020254, at *4
(S.D.N.Y. July 29, 2022) (quoting 7 N.Y.C.R.R. § 701.5(d)
(3)(i)). The IGP requires CORC to respond to an appeal
within thirty days of receipt. 7 N.Y.C.R.R. § 701.5(d)(3)(ii).
If CORC has received an appeal and fails to rule within those
thirty days, the inmate is considered to have exhausted his
administrative remedies and may file suit. Hayes v. Dahlke,
976 F.3d 259, 270 (2d Cir. 2020).
Here, the Court concludes Defendant has satisfied his
burden of proof that Plaintiff did not exhaust his available
administrative remedies. (See Dkt. Nos. 101-4 at 11-17; 109
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at 6-10.) As detailed above, the record establishes Plaintiff
filed a grievance at Upstate following the alleged incidents at
issue, which was assigned grievance number UST-59727-16.
(Dkt. No. 101-3 at ¶ 18.) Given the nature of the grievance,
alleging employee misconduct, it was forwarded directly to
the facility Superintendent. Id. at ¶ 19. On January 18, 2017,
the Superintendent denied grievance UST-59727-16. Id. at
¶ 20. The Upstate IGP has no record of Plaintiff filing an
appeal to CORC from the Superintendent's decision denying
grievance UST-59727-16. Id. at ¶ 21. Plaintiff has no records
of any appeal of his grievance to CORC and, according to
CORC records, Plaintiff did not appeal any grievance to
CORC related to any incident occurring on or about October
26, 2016. Id. at ¶ 22-23. Plaintiff's failure to appeal grievance
UST-59727-16 to CORC means Plaintiff failed to properly
exhaust his administrative remedies before filing this action.
*6 A prisoner's failure to exhaust administrative remedies
may be excused if remedies were unavailable to the inmate.
Ross v. Blake, 578 U.S. at 642. As the Supreme Court
stated in Ross, “[a]n inmate ... must exhaust available
remedies, but need not exhaust unavailable ones.” Id.
The Court provided three potential circumstances in which
administrative remedies may be unavailable: (1) where the
administrative procedure technically exists but operates as a
“dead end - with officers unable or consistently unwilling
to provide any relief to aggrieved inmates”; (2) where
the administrative scheme is “so opaque that it becomes,
practically speaking, incapable of use”; and (3) where prison
administrators “thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 643-44.
The record establishes none of the Ross exceptions are
applicable here. Plaintiff, who is well versed in the IGP,
has fully exhausted administrative grievances to CORC on
256 other occasions. (Dkt. No. 101-3 at ¶ 11.) “This shows
that Plaintiff did not view the filing of grievances as a
dead end. It also demonstrates that he clearly understood
DOCCS’ inmate grievance policy and could navigate it
when he wished to pursue a grievance. As such, the first
two exceptions identified under Ross are not applicable
here.” Smith v. Jaynes, No. 9:18-CV-1107 (DNH/DJS), 2022
WL 686627, at *3 (N.D.N.Y. Feb. 18, 2022), report and
recommendation adopted, 2022 WL 685488 (N.D.N.Y. Mar.
8, 2022) (citing Walker v. Ball, 2018 WL 1415212, at
*5 (N.D.N.Y. Feb. 16, 2018), report and recommendation
adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018)); see
also Coley, 2023 WL 346242, at *5 (plaintiff's testimony he
had successfully filed and appealed grievances in the past
at Upstate suggested DOCCS grievance process was not a
“dead end” or “incapable of use”) (citing Lurch v. Bui, No.
19-CV-895 (DNH/DJS), 2020 WL 8450543, at *5 (N.D.N.Y.
Dec. 8, 2020), report and recommendation adopted, 2021 WL
392486 (N.D.N.Y. Feb. 4, 2021)).
Nor has Plaintiff raised any triable question of fact as to the
applicability of the third Ross exception. Plaintiff implies that
he attempted to appeal his grievance to CORC but that it
was not properly forwarded. (See, e.g., Dkt. No. 107 at 8
(“I appealed all adverse grievances and/or prison authorities
never received same.”); Dkt. No. 101-2 at 124 (testifying he
“obviously appealed” the grievance to CORC and “this civil
complaint is a result of them ignoring and not addressing
the issue”).) His conclusory allegations in this regard are,
however, insufficient to raise a question of fact. Lurch, 2020
WL 8450543, at *5; see Blake v. Porlier, No. 9:18-CV-1008
(DNH/CFH), 2019 WL 7484052, at *5 (N.D.N.Y. Oct. 4,
2019) (“Courts within the Second Circuit have continuously
held that ‘mere contentions or speculation of grievances being
misplaced by officers do not create a genuine issue of material
fact when there is no evidence to support the allegations.’
”) (quoting Rodriguez v. Cross, No. 9:15-CV-1079 (GTS/
CFH), 2017 WL 2791063, at *5 (N.D.N.Y. May 9, 2017));
Artis v. Dishaw, No. 9:14-CV-1116 (MAD/ATB), 2016 WL
11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016) (finding
the plaintiff's failure to exhaust was not excusable, in part,
because while the plaintiff “state[d] that some grievances
were destroyed ... he ha[d] not submitted any copies of
these grievances, nor d[id] he specify when he attempted to
file them”), report and recommendation adopted, 2017 WL
1076343 (N.D.N.Y. Mar. 22, 2019); see also Haywood v.
Palmer, No. 21-cv-7277 (NSR), 2023 WL 2711555, at *5
(S.D.N.Y. Mar. 30, 2023) (“[A]lthough Plaintiff alleges that
‘the grievance process is broken’ and that it is [the facility's]
‘usual practice’ not to respond to grievances, these claims
are too vague and conclusory to excuse Plaintiff's failure to
exhaust.”).
*7 Further, the record is devoid of any indication that
Plaintiff followed up with the Upstate IGP supervisor “to
confirm that the appeal was filed and transmitted to CORC”
when he did not receive written confirmation within forty-
five days that his appeal was received. 7 N.Y.C.R.R. §
701.5(d)(3)(i); see, e.g., Simpson v. Price, No. 9:19-CV-1413
(MAD/ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29,
2021) (granting summary judgment on exhaustion grounds
where plaintiff “provided no specifics regarding when the
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grievances were written, their content, or the steps he took
to provide them to an officer to send to the grievance office”
and there was no documentary evidence to corroborate the
fact plaintiff attempted to file a grievance, such as follow-up
correspondences).
There is no allegation, nor is there any showing, that
Defendant or prison officials affirmatively or misleadingly
prevented Plaintiff from filing the appeal to CORC. See,
e.g., Smith, 2022 WL 686627, at *4 (“For an inmate with
Plaintiff's experience with the grievance process, this failure
to address the allegedly missing grievance belies any claim
that prison administrators’ “machination, misrepresentation,
or intimidation” denied Plaintiff the ability to file a grievance
against Jaynes.”).
In short, “[g]iven the lack of evidence that Plaintiff's appeal
to CORC was ever filed, or ever followed up on, it is
not that the full scope of administrative remedies was not
available to Plaintiff – rather, Plaintiff failed to fully exhaust
the administrative remedies available to him.” Houston
v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3
(W.D.N.Y. May 14, 2020); see Litchmore v. Williams, No. 11-
CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013)
(no “sufficient basis in the record to find that administrative
remedies were unavailable” where, among other things, there
was “no evidence here that the plaintiff's appeal was actually
mailed, intercepted, or ignored” and “DOCCS has no record
of any appeal filed with CORC”).
As a final matter, to the extent Plaintiff appears to argue
“special circumstances” justify his failure to comply with the
exhaustion, (see Dkt. No. 107 at 5-11), the Supreme Court
made it clear in Ross that courts may not excuse a prisoner's
failure to exhaust because of “special circumstances.” Ross,
578 U.S. at 640. “ ‘[M]andatory exhaustion statutes like the
PLRA establish mandatory exhaustion regimes, foreclosing
judicial discretion.’ ” Riles v. Buchanan, 656 F. App'x 577,
580 (2d Cir. 2016) (quoting Ross, 578 U.S. at 639).
Accordingly, for the foregoing reasons, the Court finds
Plaintiff has not raised an issue of material fact as to
the availability of administrative remedies. As a result, the
Court recommends granting Defendant's motion for summary
judgment because Plaintiff has failed to exhaust his available
administrative remedies under the PLRA. As such, the
Court does not reach Defendant's alternative arguments.
See, e.g., Coley, 2023 WL 346242, at *6 (declining to
address alternative arguments where summary judgment
was warranted on exhaustion grounds); White v. Dishaw,
No. 9:14-CV-0002 (GLS/DJS), 2017 WL 4325770, at *4
(N.D.N.Y. June 20, 2017) (same), report and recommendation
adopted, 2017 WL 4326074 (N.D.N.Y. Sept. 27, 2017).
III. CONCLUSION
After carefully reviewing the record, the parties’ submissions,
and the applicable law, and for the reasons stated herein, it is
hereby
RECOMMENDED that Defendant's motion for summary
judgment (Dkt. No. 101) be GRANTED because of Plaintiff's
failure to exhaust available administrative remedies; and it is
further
ORDERED that the Clerk serve a copy of this Report-
Recommendation and Order on all parties in accordance with
Local Rules, along with copies of the unpublished decisions
cited herein in accordance with Lebron v. Sanders, 557 F.3d
76 (2d Cir. 2009).
*8 Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen (14) days within which to file written objections
to the foregoing report. 7 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN (14) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
7 If you are proceeding pro se and are served with this
Report-Recommendation and Order by mail, three
additional days will be added to the fourteen-day
period, meaning that you have seventeen days from
the date of the Report-Recommendation and Order
was mailed to you to serve and file objections. Fed.
R. Civ. P. 6(d). If the last day of that prescribed
period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the
next day that is not a Saturday, Sunday, or legal
holiday. Fed. R. Civ. P. 6(a)(1)(C).
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 5779533
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Shabazz v. Bailey
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Docket 23-7252
Shabazz v. Bailey
— C.A.2 Oct. 04, 2023 Docket
2. Docket 9:20-CV-00057
Shabazz v. Bailey
— N.D.N.Y. Jan. 16, 2020 Docket
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Shabazz v. Bailey
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History (5)
Direct History (3)
1. Shabazz v. Bailey
2023 WL 5779533 , N.D.N.Y. , June 28, 2023
Report and Recommendation Adopted by
2. Shabazz v. Bailey
2023 WL 5622049 , N.D.N.Y. , Aug. 31, 2023
Affirmed by
3. Shabazz v. Bailey
2025 WL 272602 , 2nd Cir.(N.Y.) , Jan. 23, 2025
Related References (2)
4. Shabazz v. Annucci
2020 WL 13801095 , S.D.N.Y. , Jan. 09, 2020
Transferred to
5. Shabazz v. Annucci
2020 WL 13801106 , N.D.N.Y. , Apr. 07, 2020
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Shabazz v. Bailey
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Shabazz v. Bailey, Not Reported in Fed. Supp. (2023)
2023 WL 5622049
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2023 WL 5622049
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael Aziz Zarif SHABAZZ, Plaintiff,
v.
BAILEY, Defendant.
9:20-CV-57 (LEK/TWD)
|
Signed August 30, 2023
|
Filed August 31, 2023
Attorneys and Law Firms
Michael Aziz Zarif Shabazz, Mount Vernon, NY, Pro Se.
John F. Moore, Office of Attorney General - Albany State of
New York, Albany, NY, for Defendant.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Plaintiff Michael Aziz Zarif Shabazz brings this pro se
action against Defendant Corrections Officer (“CO”) Bailey
pursuant to 42 U.S.C. § 1983, alleging that Defendant violated
his Eighth Amendment rights. See Dkt. No. 2 (“Complaint”)
at 4–15.
The Honorable Thérèse Wiley Dancks, United States
Magistrate Judge, issued a report and recommendation
on June 28, 2023, Dkt. No. 112 (“Report and
Recommendation”), recommending that Defendant's motion
for summary judgment, Dkt. No. 101 (“Motion”), be granted
because Plaintiff failed to exhaust his available administrative
remedies under the Prison Litigation Reform Act (“PLRA”),
R. & R. at 14–15. Plaintiff has filed objections, Dkt. No. 113
(“Objections”), and Defendant has responded, Dkt. No. 114.
For the reasons that follow, the Court approves and adopts
Judge Dancks's Report and Recommendation in its entirety.
II. BACKGROUND
A. Factual Allegations
The Court assumes familiarity with Judge Dancks's Report
and Recommendation, as well as with Plaintiff's factual
allegations detailed therein. See R. & R. at 2–5.
B. The Report and Recommendation
Judge Dancks comprehensively reviewed Plaintiff's
Complaint and Defendant's Motion, R. & R. at 2–5, and
recommended that Defendant's Motion be granted, id. at
15. Judge Dancks reached this conclusion after finding
that Plaintiff failed to exhaust his available administrative
remedies under the PLRA. Id. at 14–15.
Pursuant to 42 U.S.C. § 1997e(a) of the PLRA, incarcerated
individuals must exhaust all available administrative
remedies prior to bringing a federal civil rights action. Id.
at 9. “The PLRA requires ‘proper exhaustion,’ which means
using all steps of the administrative process and complying
with ‘deadlines and other critical procedural rules.’ ” Id.
at 9 (quoting Woodford v. Ngo, 548 U.S. 81, 93 (2006)).
Exhaustion is an affirmative defense, and the burden of proof
remains on the defendant at all times. Id. at 10.
To prevail on his 42 U.S.C. § 1983 claim, Plaintiff, who
alleged wrongdoings while he was in the custody of New
York State Department of Corrections and Community
Supervision (“DOCCS”) at Upstate Correctional Facility
(“Upstate”), id. at 2, was required to follow New York's
grievance procedure, which is known as the Incarcerated
Grievance Program (“IGP”), id. at 5. The IGP is a three-
tiered process, requiring inmates to: (1) file a grievance with
the Incarcerated Grievance Resolution Committee (“IGRC”)
at the individual facility; (2) appeal adverse IGRC decisions
to the superintendent of the facility (“Superintendent”);
and (3) appeal adverse Superintendent decisions to the
Central Office Review Committee (“CORC”). Id. at 5,
10. However, complaints of harassment are expedited and
are forwarded directly to the Superintendent. Id. at 10.
The incarcerated individual must then, similarly, appeal an
adverse Superintendent decision to CORC. Id. “CORC is
required to provide, through IGP staff, written confirmation
that an appeal has been received.” Id. (internal citations
omitted). Therefore, if an incarcerated individual does not
receive confirmation of appeal receipt within forty-five days,
the individual is instructed to write the IGP supervisor to
confirm that the appeal was filed and transmitted to CORC.
Id.
*2 Here, given that Plaintiff alleged employee misconduct,
Plaintiff's grievance was forwarded directly to the facility
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Superintendent. Id. at 10–11. The Superintendent denied
Plaintiff's grievance, but neither Upstate's IGP nor Plaintiff
had any record of Plaintiff filing an appeal to CORC. Id. at
11. CORC's records also did not indicate that Plaintiff had
appealed to CORC. Id. Accordingly, Judge Dancks found that
Plaintiff's failure to appeal to CORC meant Plaintiff “failed
to properly exhaust his administrative remedies before filing
this action.” Id.
Judge Dancks next evaluated if the record established that
Plaintiff's failure to exhaust administrative remedies may be
excused due to unavailability of the remedy to Plaintiff. Id.
at 11–14. Judge Dancks noted that the Supreme Court has
outlined three types of circumstances where administrative
remedies are not available:
(1) where the administrative procedure technically exists
but operates as a “dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved
[incarcerated individuals]”; (2) where the administrative
scheme is “so opaque that it becomes, practically
speaking, incapable of use”; and (3) where prison
administrators “thwart inmates from taking advantage of a
grievance process through machination, misrepresentation,
or intimidation.”
Id. at 11 (quoting Ross v. Blake, 578 U.S. 632, 643–44
(2016)).
Judge Dancks concluded that none of the three Ross
exceptions were applicable here. Id. Furthermore, Judge
Dancks noted that courts in this Circuit have held that a
plaintiff's past filing of grievances demonstrates both that (1)
the plaintiff does not view the filing as a dead end, and that
(2) the plaintiff understands DOCCS’ IGP. Id. (citing Smith v.
Jaynes, No. 18-CV-1107, 2022 WL 686627, at *3 (N.D.N.Y.
Feb. 18, 2022)). Judge Dancks specifically stated that Plaintiff
has “fully exhausted administrative grievances to CORC on
256 other occasions,” and, as such, “the first two exceptions
identified under Ross are not applicable here.” Id.
Further, Judge Dancks found that Plaintiff's conclusory
allegation that his grievance appeal to CORC was not
property forwarded did not raise any triable question of fact
as to the applicability of the third Ross exception. Id. at 12
(citing Lurch v. Bui, No. 19-CV-895, 2020 WL 8450543,
at *5 (N.D.N.Y. Dec. 8, 2020)). Judge Dancks noted that
courts in this Circuit “have continuously held that mere
contentions or speculation of grievances being misplaced
by officers do not create a genuine issue of material fact
when there is no evidence to support the allegations.” Id.
(internal citations omitted) (quoting Blake v. Porlier, No.
18-CV-1008, 2019 WL 7484052, at *5 (N.D.N.Y. Oct. 4,
2019)). Judge Dancks stated that there is not only a lack
of evidence that Plaintiff's appeal to CORC was ever filed,
but there is also no “indication that Plaintiff ever followed
up with the Upstate IGP Supervisor ‘to confirm that the
appeal was filed and transmitted to CORC’ when he did not
receive written confirmation within forty-five days that his
appeal was received.” Id. at 13 (internal citations omitted).
Accordingly, Judge Dancks found that “it is not that the full
scope of administrative remedies was not available to Plaintiff
—rather, Plaintiff failed to fully exhaust the administrative
remedies available to him.” Id. (internal citations omitted).
Finally, Judge Dancks concluded that, while “Plaintiff
appears to argue ‘special circumstances’ to justify his failure
to comply with the exhaustion, the Supreme Court made it
clear in Ross that courts may not excuse a prisoner's failure
to exhaust because of ‘special circumstances.’ ” Id. at 14
(quoting Ross, 578 U.S. at 640). Thus, Judge Dancks found
that Plaintiff did not raise an issue of material fact as to
the availability of administrative remedies, and recommended
granting of Defendant's motion for summary judgment
because Plaintiff failed to exhaust his available administrative
remedies under the PLRA. Id. Accordingly, Judge Dancks
did not reach Defendant's alternative arguments. Id. (citing
Coley v. Garland, No. 19-CV-00382, 2023 WL 346242, at
*6 (N.D.N.Y. Jan. 20, 2023) (declining to address alternative
arguments where summary judgment was warranted on
exhaustion grounds)).
III. STANDARD OF REVIEW
*3 “Rule 72 of the Federal Rules of Civil Procedure and
Title 28 United States Code Section 636 govern the review of
decisions rendered by Magistrate Judges.” A.V. by Versace,
Inc. v. Gianni Versace, S.p.A., 191 F. Supp. 2d 404, 405
(S.D.N.Y. 2002); see also 28 U.S.C. § 636; Fed. R. Civ. P. 72.
Review of decisions rendered by Magistrate Judges are also
governed by the Local Rules. See L.R. 72.1. As 28 U.S.C. §
636 states:
Within fourteen days after being
served with a copy [of the Magistrate
Judge's report and recommendation],
any party may serve and file written
objections to such proposed findings
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and recommendations as provided
by rules of the court. A judge of
the court shall make a de novo
determination of those portions of
the report or specified proposed
findings or recommendations to which
objection is made. A judge of the
court may accept, reject, or modify,
in whole or in part, the findings
of recommendations made by the
magistrate judge. The judge may also
receive further evidence or recommit
the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1). When written objections are filed
and the district court conducts a de novo review, that “de
novo determination does not require the Court to conduct a
new hearing; rather, it mandates that the Court give fresh
consideration to those issues to which specific objections
have been made.” A.V. by Versace, 191 F. Supp. 2d at 406
(emphasis in original); see also 12 Wright & Miller, Fed. Prac.
& Proc. Civ. § 3070.2 (3rd ed.) (2022) (“[T]he judge to whom
the objection is made must review the record and magistrate's
recommendations, and must make a de novo determination of
the facts and legal conclusions, receiving additional evidence
and rehearing witnesses at his or her discretion. The district
judge must not be a rubber stamp.” (footnote omitted)).
“The district court may adopt those portions of a report
and recommendation to which no timely objections have
been made, provided no clear error is apparent from the
face of the record.” DiPilato v. 7-Eleven, Inc., 662 F. Supp.
2d 333, 339 (S.D.N.Y. 2009). “When a party makes only
conclusory or general objections, or simply reiterates the
original arguments, the Court will review the [report and
recommendation] strictly for clear error.” N.Y.C. Dist. Couns.
of Carpenters Pension Fund v. Forde, 341 F. Supp. 3d 334,
336 (S.D.N.Y. 2018) (quoting Molefe v. KLM Royal Dutch
Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009)).
“The objections of parties appearing pro se are ‘generally
accorded leniency’ and should be construed ‘to raise the
strongest arguments that they suggest.’ ” DiPilato, 662 F.
Supp. 2d at 340 (emphasis in original) (quoting Milano v.
Astrue, No. 05-CV-6527, 2008 WL 4410131, at *2 (S.D.N.Y.
Sept. 26, 2008)). “Nonetheless, even a pro se party's
objections to a report-recommendation must be specific
and clearly aimed at particular findings in the magistrate's
proposal, such that no party be allowed a second bite at the
apple by simply relitigating a prior argument.” DiPilato, 662
F. Supp. 2d at 340 (emphasis in original) (quoting Pinkney v.
Progressive Home Health Servs., No. 06-CV-5023, 2008 WL
2811816, at *1 (S.D.N.Y. July 21, 2008)).
IV. DISCUSSION
A. Plaintiff's Objections
*4 Plaintiff objects to the Report and Recommendation on
nine grounds. Objs. at 1–4. Plaintiff's objections appear to
either address matters wholly unrelated to the Report and
Recommendation, or reiterate the same arguments that he
presented in earlier filings. Id.; see also Dkt. No 87 (“2022
Appeal”) (appealing a magistrate decision and objecting on
identical grounds). Further, Plaintiff's Objection does not
specifically challenge any portion of Judge Dancks's Report
and Recommendation. See generally Objs.
The Court first addresses those arguments that Plaintiff
repeats from previous filings. Regarding Plaintiff's first
objection, Plaintiff states that he “reiterate[s] and repeat[s]
all of the issues raised in my responding papers to the
defendants’ [Motion].” Id. at 1. However, Plaintiff does not
provide any specific basis for rejecting or changing the
Report and Recommendation, and thus is “simply relitigating
a prior argument.” DiPilato, 662 F. Supp. 2d at 340.
Accordingly, the Court reviews this portion of the Report and
Recommendation for clear error and finds none.
Next, Plaintiff's fourth argument objects to venue in the
Northern District of New York. Objs. at 2. Plaintiff seeks
venue in the Southern District of New York, id., which
Plaintiff also previously raised, see 2022 Appeal at 4. 1 Thus,
because Plaintiff reiterates a prior argument, the Court finds
no clear error here.
1 The Court notes that Judge McMahon ruled that
transfer from the Southern District of New York
was appropriate and that venue was proper in the
Northern District of New York. See Dkt. No. 3 at
3–4.
Plaintiff's seventh objection alleges that “Magistrate Judge
and John Moore repeatedly lied about providing me with my
discovery requests,” Objs. at 3, and Plaintiff's Ninth objection
states that Judge Dancks “unconstitutionally and wantonly
denied my Rule 37 motion,” id. at 4. Plaintiff has previously
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raised the allegation that Defendants adequately respond to
his discovery demands. See Dkt. No. 85 at 2; see also Dkt.
No. 87 at 1–2. Because Plaintiff restates a prior argument, the
Court finds no clear error here.
The Court next turns to Plaintiff's arguments that are plainly
meritless; namely, Plaintiff's second, third, fifth, sixth, and
eighth objections. Plaintiff's second objection argues that
Judge Dancks “misrepresented my papers and lied on the
record.” Id. at 2. Plaintiff's third objection states that Judge
Dancks was “bias[ed] and prejudice[d] against me.” Id.
Plaintiff's fifth objection posits that Judge Dancks “usurped
the authority of Judge Kahn and unconstitutionally denied
my motion request.” Id. at 3. Plaintiff's sixth objection
states that Judge Dancks and defense counsel “may have
a personal relationship.” Id. Plaintiff's eighth objection
states that his grievances were “robbed out of my assigned
cell.” Id. at 4. Plaintiff provides no supporting evidence
for these assertions, and these objections appear to be
sheer speculation. The Court therefore finds these objections
meritless. See Belgrave v. Graham, No. 10-CV-5168, 2017
WL 4736731, at *3 (E.D.N.Y. Oct. 19, 2017) (denying
an objection to a magistrate's report and recommendation
because the “objection is mere speculation and is without
support in the record”); Lilakos v. New York City, No. 14-
CV-05288, 2016 WL 5928674, at *3 (E.D.N.Y. Sept. 30,
2016) (rejecting a report and recommendation objection on
the ground that the objection “is based on pure speculation”),
aff'd, 808 F. App'x 4 (2d Cir. 2020).
*5 Based upon a careful review, the Court denies Plaintiff's
Objections and accepts the Report and Recommendation
in its entirety. See 28 U.S.C. § 636(b)(1). The Court
therefore grants Defendant's Motion and dismisses this
action. Furthermore, given that Plaintiff failed to exhaust
administrative remedies, and given that the time period to
exhaust those remedies has expired, 2 any further attempt
to prosecute this case would be futile. The Court therefore
dismisses the Complaint against Defendants with prejudice.
See Nwaokocha v. Sadowski, 369 F. Supp. 2d 362, 372
(E.D.N.Y. 2005) (“A court [ ] has discretion to dismiss with
prejudice if it believes that amendment would be futile or
would unnecessarily expend judicial resources.”).
2 N.Y. Comp. Codes R. & Regs., tit, 7 §§ 701.5(d)(1)
(i) outlines that an appeal must be made to CORC
“within seven calendar days after receipt of the
superintendent's written response to the grievance.”
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report and Recommendation (Dkt. No.
112) is APPROVED and ADOPTED in its entirety; and it
is further
ORDERED, that Defendant's motion for summary judgment
(Dkt. No. 101) is GRANTED because of Plaintiff's failure to
exhaust available administrative remedies; and it is further
ORDERED, that Plaintiff's Complaint (Dkt. No. 2) is
DISMISSED with prejudice; and it is further
ORDERED, that the Clerk close this action; and it is further
ORDERED, that the Clerk serve a copy of this
Memorandum-Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 5622049
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 86 of 306

Shabazz v. Bailey
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Docket 23-7252
Shabazz v. Bailey
— C.A.2 Oct. 04, 2023 Docket
2. Docket 9:20-CV-00057
Shabazz v. Bailey
— N.D.N.Y. Jan. 16, 2020 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 87 of 306

Shabazz v. Bailey
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (5)
Direct History (3)
1. Shabazz v. Bailey
2023 WL 5779533 , N.D.N.Y. , June 28, 2023
Report and Recommendation Adopted by
2. Shabazz v. Bailey
2023 WL 5622049 , N.D.N.Y. , Aug. 31, 2023
Affirmed by
3. Shabazz v. Bailey
2025 WL 272602 , 2nd Cir.(N.Y.) , Jan. 23, 2025
Related References (2)
4. Shabazz v. Annucci
2020 WL 13801095 , S.D.N.Y. , Jan. 09, 2020
Transferred to
5. Shabazz v. Annucci
2020 WL 13801106 , N.D.N.Y. , Apr. 07, 2020
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 88 of 306

Arias v. Rice, Slip Copy (2025)
2025 WL 1249556
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1249556
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Francis M. ARIAS, Plaintiff,
v.
C.O.S. RICE, Defendant.
Case # 23-CV-6340-FPG
|
Signed April 30, 2025
Attorneys and Law Firms
Francis M. Arias, Bronx, NY, Pro Se.
Hillel David Deutsch, NYS Attorney General's Office,
Rochester, NY, for Defendant.
DECISION AND ORDER
FRANK P. GERACI, JR., United States District Judge
*1 Pro se Plaintiff Francis M. Arias brings this civil rights
action against Defendant C.O.S. Rice, alleging that Defendant
used excessive force against him while he was incarcerated
at Lakeview Shock Incarceration Correctional Facility. ECF
No. 1. Presently before the Court is Defendant's motion
for summary judgment. ECF No. 19. Defendant argues that
judgment as a matter of law is warranted because Plaintiff
failed to exhaust his administrative remedies. Plaintiff has not
filed a response. 1 See ECF Nos. 20, 23, 25. For the reasons
that follow, Defendant's motion is GRANTED.
1 Plaintiff's response was originally due on January
9, 2025. ECF No. 20. Plaintiff received two
extensions of time, such that his most recent
deadline was April 10, 2025. ECF No. 25. Plaintiff
was warned that no further extensions would be
granted without good cause. See id. Plaintiff did not
file a response by that deadline.
On April 23, 2025—nearly two weeks after the
deadline—Plaintiff contacted the Clerk's Office by
phone in order to notify the Court that he intended
to submit another letter request for an extension
of time. Nevertheless, a week has passed, and the
Court has not received any letter. No further delay
is warranted.
Summary judgment is appropriate when the record shows that
there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). Disputes concerning material facts are genuine
where the evidence is such that a reasonable jury could return
a verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine
issues of material fact exist, the court construes all facts in a
light most favorable to the non-moving party and draws all
reasonable inferences in the non-moving party's favor. See
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).
However, the non-moving party “may not rely on conclusory
allegations or unsubstantiated speculation.” F.D.I.C. v. Great
Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation
omitted).
Under the Prisoner Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a), “[n]o action shall be brought with respect
to prison conditions under section 1983 ... or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.” 2 The administrative exhaustion
requirement “applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes.” Porter v. Nussle, 534 U.S. 516, 532 (2002). If
an inmate fails to exhaust his administrative remedies, he
is barred from commencing a federal lawsuit. Martin v.
Niagara Cty. Jail, No. 05-CV-00868, 2012 WL 3230435, at
*6 (W.D.N.Y. Aug. 6, 2012). In other words, to commence a
lawsuit “prisoners must complete the administrative review
process in accordance with the applicable procedural rules
—rules that are defined not by the PLRA, but by the
prison grievance process itself.” Johnson v. Killian, 680 F.3d
234, 238 (2d Cir. 2012). Exhaustion necessitates “using all
steps that the [government] agency holds out, and doing
so properly.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir.
2011). To be “[p]roper,” exhaustion must comply with all of
the agency's “deadlines and other critical procedural rules.”
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
2 Although Plaintiff has been released from custody,
ECF No. 24 at 1, he is subject to the exhaustion
requirement because he “initiated suit while still in
custody.” Richardson v. City of New York, No. 21-
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Arias v. Rice, Slip Copy (2025)
2025 WL 1249556
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
CV-5080, 2023 WL 1777323, at *3 (S.D.N.Y. Feb.
6, 2023) (collecting cases).
*2 To satisfy the PLRA's exhaustion requirement, an inmate
in New York is generally required to follow the prescribed
grievance procedure, which is set forth at 7 N.Y.C.R.R. §
701.5. The inmate's administrative remedies consist of a
three-step grievance and appeal procedure: (1) investigation
and review of the grievance by the Inmate Grievance
Resolution Committee (“IGRC”); (2) if appealed, review
of the IGRC's determination by the superintendent of the
facility; and (3) if the superintendent's decision is appealed,
review and final administrative determination by CORC.
See id. All three steps of this procedure must ordinarily be
exhausted before an inmate may commence suit in federal
court. See Morrison v. Parmele, 892 F. Supp. 2d 485, 488
(W.D.N.Y. 2012).
In this case, Defendant provides evidence establishing that
Plaintiff never sought review with CORC for any grievance
related to this incident—a necessary step to exhaust. See
ECF No. 19-4 at 5-6. 7 N.Y.C.R.R. § 701.5(d); Omaro v.
Annucci, 68 F. Supp. 3d 359, 364 (W.D.N.Y. 2014) (“It
is well-established that an inmate who does not appeal to
CORC has failed to exhaust his administrative remedies.”).
Moreover, in his Rule 56 Statement of Facts, Defendant
asserts that “Plaintiff did not exhaust a grievance pertaining
to the incident alleged prior to filing the instant suit.” ECF
No. 19-1 at 1. Despite being warned of the consequences
of his failure to respond with opposing facts, see ECF No.
19-2 at 2-5; ECF No. 20 at 1-2, Plaintiff did not contest this
factual assertion. Accordingly, Plaintiff's failure to exhaust
is “deemed admitted” insofar as he fails to “specifically
controvert[ ] [it]” in accordance with the Local Rules. Loc. R.
Civ. P. 56(a)(2).
Because Plaintiff failed to exhaust his administrative
remedies with respect to the excessive-force claim against
Defendant, Defendant is entitled to summary judgment.
Dismissal with prejudice is appropriate because Plaintiff can
no longer cure this defect in exhaustion. See generally 7
N.Y.C.R.R. § 701.5.
CONCLUSION
For these reasons, Defendant C.O.S. Rice's motion for
summary judgment (ECF No. 19) is GRANTED. Plaintiff's
complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1249556
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 90 of 306

Arias v. Rice
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 6:23-CV-06340
Arias v. Lakeview Correctional Facility et al
— W.D.N.Y. June 20, 2023 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 91 of 306

Arias v. Rice
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 92 of 306

Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
2019 WL 7606078
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 7606078
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edmund BOWIE, Plaintiff,
v.
Sergeant Gary WOODRUFF and Correctional
Officer Kyle Brooks, Defendants.
9:18-CV-0266 (BKS/ML)
|
Signed 09/20/2019
Attorneys and Law Firms
EDMUND BOWIE, 14-B-0838, Plaintiff, pro se, Auburn
Correctional Facility, P.O. Box 618, Auburn, NY 13021.
HON. LETITIA JAMES, Attorney General for the State of
New York, MATTHEW P. REED, ESQ., Assistant Attorney
General, Attorney for Defendants, The Capitol, Albany, New
York 12224-0341.
REPORT-RECOMMENDATION AND ORDER 1
1 This matter was referred to the undersigned for
report and recommendation pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y.L.R. 72.3(c).
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Plaintiff pro se Edmund Bowie (“Bowie” or “Plaintiff”),
an inmate who was, at all relevant times, in the custody of
the New York Department of Corrections and Community
Supervision (“DOCCS”), brings this action pursuant to 42
U.S.C. § 1983 against Defendants Sergeant Gary Woodruff
(“Sgt. Woodruff”) and Correctional Officer Kyle Brooks
(“C.O. Brooks”) for violations of his rights under the Eighth
Amendment. Dkt. No. 1 (“Compl.”). Presently before the
Court is Defendants’ motion for summary judgment and
dismissal of Bowie's complaint pursuant to Rule 56(a) of
the Federal Rules of Civil Procedure. Dkt. No. 29. Bowie
did not oppose the motion. For the following reasons,
it is recommended that Defendants’ motion for summary
judgment be granted.
I. BACKGROUND
A. Plaintiff's Failure to Respond
Before discussing the background of this case, the Court
addresses Bowie's failure to respond or oppose the motion.
The Second Circuit requires that a pro se litigant defending
against a summary judgment motion be notified as to the
nature and consequences of summary judgment. Vital v.
Interfaith Med. Ctr., 168 F.3d 615, 620–21 (2d Cir. 1999);
see also Local Rule 56.2 (Notice to Pro Se Litigants of the
Consequences of Failing to Respond to a Summary Judgment
Motion). Here, Bowie was notified of the consequences
of failing to respond to a summary judgment motion by
Defendants and the Court. Dkt. No. 29 at 3; Dkt. No. 30.
Given this notice, Bowie was adequately apprised of the
pendency of Defendants’ motion and the consequences of
failing to respond. On May 21, 2019, Bowie filed a Notice
of Change of Address and requested an extension of time to
file his response to the motion. Dkt. Nos. 31 and 32. The
Court granted the extension and directed Bowie to provide a
response on or before June 21, 2019. Dkt. No. 33. Despite the
extension, Bowie has not submitted opposition to Defendants’
motion for summary judgment.
“The fact that there has been no response to a summary
judgment motion does not ... mean that the motion is to be
granted automatically.” Champion v. Artuz, 76 F.3d 483, 486
(2d Cir. 1996). The Court has broad discretion to decide
whether to overlook the parties’ failures and perform an
independent review of the record. Holtz v. Rockefeller & Co.,
258 F.3d 62, 73 (2d Cir. 2001); see also Jackson v. Fed.
Exp., 766 F.3d 189, 194 (2d Cir. 2014) (noting that “the court
may rely on other evidence in the record even if uncited” in
determining the undisputed material facts). If the district court
chooses to conduct such an independent review of the record,
any verified complaint filed by the plaintiff should be treated
as an affidavit in opposing a motion for summary judgment.
Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir.
2004).
Here, because the Complaint is verified, 2 the Court will
accept the pleading as an affidavit to the extent that the
statements are based on Bowie's personal knowledge or are
supported by the record. See Berry v. Marchinkowski, 137
F.Supp.3d 495, 530 (S.D.N.Y. 2005) (collecting cases to
support the proposition that a court may consider unsworn
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
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assertions on a motion for summary judgment where they are
based on the plaintiff's personal knowledge and in light of
special solicitude).
2 The Complaint was properly verified by
declaration under 28 U.S.C. § 1746. Compl. at
5; LeBoeuf, Lamb, Greene & MacRae, L.L.P. v.
Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999)
(holding that use of the language “under penalty of
perjury” substantially complies with 28 U.S.C. §
1746).
*2 Due to Bowie's pro se status, the Court has opted to
review the entire summary judgment record to ascertain the
undisputed material facts. Consequently, the facts set forth
in Defendants’ Rule 7.1 Statement of Material Facts 3 are
accepted as true as to those facts that are not disputed by the
facts set forth in the Complaint. N.D.N.Y. L.R. 7.1(a)(3) (“The
Court shall deem admitted any properly supported facts set
forth in the Statement of Facts that the opposing party does
not specifically controvert.”) (emphasis omitted).
3 Local Rule 7.1(a)(3) states:
Summary Judgment Motions
Any motion for summary judgment shall
contain a Statement of Material Facts. The
Statement of Material Facts shall set forth,
in numbered paragraphs, each material fact
about which the moving party contends there
exists no genuine issue. Each fact listed shall
set forth a specific citation to the record
where the fact is established. The record for
purposes of the Statement of Material Facts
includes the pleadings, depositions, answers
to interrogatories, admissions and affidavits. It
does not, however, include attorneys’ affidavits.
The opposing party shall file a response to the
Statement of Material Facts. The non-movant's
response shall mirror the movant's Statement
of Material Facts by admitting and/or denying
each of the movant's assertions in matching
numbered paragraphs. Each denial shall set
forth a specific citation to the record where
the factual issue arises. The Court shall deem
admitted any properly supported facts set forth
in the Statement of Material Facts that the
opposing party does not specifically controvert.
The non-movant's response may also set forth
any additional material facts that the non-movant
contends are in dispute. Any facts set forth in
the Statement of Material Facts shall be deemed
admitted unless specifically controverted by the
opposing party.
Local Rule 7.1(a)(3).
B. Facts 4
4 Defendants annexed exhibits to the motion. Dkt.
No. 29-3. Plaintiff does not object or challenge
the authenticity of the documents. Therefore, the
Court will consider the exhibits in the context
of the within motion. See U.S. v. Painting
known as Hannibal, No. 07-CV-1511, 2010 WL
2102484, at *1, n.2 (S.D.N.Y. May 18, 2010)
(citing Daniel v. Unum Provident Corp., 261 F.
App'x 316, 319 (2d Cir. 2008) (“[A] party is not
required to authenticate documents on a summary
judgment motion where, as here, authenticity is
not challenged by the other party”)). In light of
the procedural posture of the case, the following
recitation is derived from the record now before the
Court, with all inferences drawn and ambiguities
resolved in non-moving party's favor. Terry v.
Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
At the time of the incidents described in the Complaint, Bowie
was an inmate in the custody of DOCCS and confined at Great
Meadow Correctional Facility (“Great Meadow C.F.”). See
generally, Dkt. No. 1.
Bowie claims that he was involved in a physical altercation
with Sgt. Woodruff and C.O. Brooks on June 10, 2017.
Dkt. No. 1 at 2-3. Bowie alleges that Sgt. Woodruff and
C.O. Brooks used excessive force and failed to intervene to
protect him from the use of force, in violation of his Eighth
Amendment rights. Id. at 4.
On June 23, 2017, Bowie filed an Inmate Grievance
Complaint (Grievance No. 62268-17) related to the June 10,
2017 incident. Dkt. No. 29-3 at 3, 6. Bowie alleged:
I was involved in a altercation in
the big yard on (6-10-17) at which
time I was handcuffed and taken to
the facility infirmary. While in the
infirmary check up room, Sergeant
John Doe asked me questions which
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
2019 WL 7606078
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I answered. He said I was not trueful
[sic] and proceed[ed] to slap me in the
back of the head. He asked me some
more questions[,] again I answered.
He once again told me I was a liar
[and] told Officer John Doe to hold me
against the wall while another officer
punched me in the ribs 4 or 5 times
breaking 2 of my ribs which resulted in
me going to Albany Med.
*3 Dkt. No. 29-3 at 6.
On July 10, 2017, the Grievance Clerk received the grievance.
Dkt. No. 29-3 at 3. Due to the nature of the grievance,
the Inmate Grievance Resolution Committee (“IGRC”)
forwarded the grievance directly to the facility Superintendent
for review. Id.
On August 9, 2017, the Superintendent issued a decision
stating that the grievance was investigated and denied.
Dkt. No. 29-3 at 7. On August 21, 2017, Bowie signed
the Appeal Statement indicating that he wished to appeal
the Superintendent's decision to the Central Office Review
Committee (“CORC”). Id. On August 23, 2017, the
Grievance Clerk received and signed the Appeal Statement.
Id. On August 29, 2017, CORC received the appeal. Id. at 8.
On February 26, 2018, Bowie signed his civil rights
Complaint and commenced the within action. Dkt. No. 1 at 5.
On October 17, 2018, CORC issued a decision affirming the
Superintendent's determination. Dkt. No. 29-3 at 9.
C. Procedural History
On March 3, 2018, the Court received the Complaint in the
within action. Dkt. No. 1. Upon review of the Complaint,
the Court directed Defendants to respond to the Eighth
Amendment excessive force and failure-to-intervene claims.
Dkt. No. 7. On June 25, 2018, Defendants filed an Answer to
the Complaint. 5 Dkt. No. 13. On April 26, 2019, Defendants
filed the within motion pursuant to Fed. R. Civ. P. 56 seeking
judgment as a matter of law with respect to Bowie's claims.
Dkt. No. 29.
5 In the Answer, Defendants pleaded, inter alia, the
affirmative defense that Bowie failed to exhaust his
administrative remedies. Dkt. No. 13 at ¶ 15.
II. LEGAL STANDARD
A motion for summary judgment may be granted if there is
no genuine issue as to any material fact, it was supported
by affidavits or other suitable evidence, and the moving
party is entitled to judgment as a matter of law. The moving
party bears the burden of demonstrating the absence of
disputed material facts by providing the court with portions
of pleadings, depositions, and affidavits which support the
motion. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Facts are material if they may affect
the outcome of the case as determined by substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 317, 248 (1986).
To defeat a motion for summary judgment, the non-movant
must set out specific facts showing that there is a genuine
issue for trial, and cannot rest merely on allegations or
denials of the facts submitted by the movant. Fed. R. Civ.
P. 56; see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003) (“Conclusory allegations or denials are ordinarily not
sufficient to defeat a motion for summary judgment when
the moving party has set out a documentary case.”); Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.
1994). To that end, sworn statements are “more than mere
conclusory allegations subject to disregard ... they are specific
and detailed allegations of fact, made under penalty of perjury,
and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is
better left to a trier of fact. Scott, 344 F.3d at 289 (citing
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
*4 All ambiguities are resolved and all reasonable inferences
are drawn in favor of the non-moving party. Skubel v. Fuoroli,
113 F.3d 330, 334 (2d Cir. 1997). Furthermore, where, as here,
a party seeks judgment against a pro se litigant, a court must
afford the non-movant special solicitude. See Triestman v.
Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006).
As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se
litigant is entitled to “special solicitude,” ... that a pro se
litigant's submissions must be construed “liberally,” ... and
that such submissions must be read to raise the strongest
arguments that they “suggest,” .... At the same time, our
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
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cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro se
litigant's allegations, ... or arguments that the submissions
themselves do not “suggest,” ... that we should not “excuse
frivolous or vexatious filings by pro se litigants,” ... and
that pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law.”
Id. (citations and footnote omitted); see also Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191–92 (2d Cir. 2008).
Nonetheless, summary judgment is appropriate “[w]here the
record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. DISCUSSION 6
6 All unpublished opinions cited in this Report-
Recommendation and Order, unless otherwise
noted, have been provided to Plaintiff.
Defendants move for summary judgment arguing that
Bowie failed to exhaust his administrative remedies through
available grievance procedures prior to the commencement of
this action. See generally, Dkt. No. 29.
A. Exhaustion
The Prison Litigation Reform Act (“PLRA”) requires that
a prisoner exhaust any administrative remedies available to
him or her before bringing an action for claims arising out of
his or her incarceration. Porter v. Nussle, 534 U.S. 516, 524
(2002); see also Woodford v. Ngo, 548 U.S. 81, 82 (2006).
The exhaustion requirement applies “to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter, 534 U.S. at 532. Further,
the exhaustion requirement applies even where the prisoner
seeks relief not available in the administrative grievance
process, such as monetary damages. Id. at 524. To exhaust
administrative remedies, the inmate must complete the full
administrative review process set forth in the rules applicable
to the correctional facility in which he or she is incarcerated.
Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation
omitted).
Here, there is no dispute that at all relevant times, DOCCS
had in place a three-step inmate grievance program (“IGP”).
N.Y. Comp. Codes R. & Regs. title 7, § 701.5 (2015). First, the
inmate must file a complaint with IGP clerk within twenty-
one days of the alleged action. Id. at § 701.5(a)(1). An IGP
representative has sixteen calendar days to informally resolve
the issue. Id. at § 701.5(b)(1). If no informal resolution occurs,
the full IGP committee must hold a hearing within sixteen
days of receipt of the grievance and must issue a written
decision within two working days after the conclusion of
the hearing. Id. §§ 701.5(b)(2)(i)-(ii). If the determination is
unfavorable to the inmate, the inmate may appeal the IGRC's
determination to the facility superintendent within seven
calendar days of receipt of the determination. Id. § 701.5(c)
(1). If the superintendent's determination is unfavorable to
the inmate, the inmate may appeal to CORC within seven
days after receipt of the superintendent's determination. Id. §§
701.5(d)(1)(i)-(ii). If a grievant does not receive a copy of the
written notice of receipt within 45 days of filing an appeal,
the grievant should contact the IGP supervisor in writing to
confirm that the appeal was filed and transmitted to CORC.
Id. at § 701.5(d)(3)(i). CORC must “review each appeal,
render a decision on the grievance, and transmit its decision to
the facility, with reasons stated, for the [inmate], the grievance
clerk, the superintendent, and any direct parties within thirty
(30) calendar days from the time the appeal was received.” Id.
§ 701.5(d)(3)(ii). Only upon exhaustion of all three levels of
review may a prisoner seek relief in federal court. Bridgeforth
v. Bartlett, 686 F.Supp.2d 238, 239 (W.D.N.Y. 2010) (citing,
inter alia, Porter, 534 U.S. at 524); see also Neal v. Goord,
267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds
by Porter, 534 U.S. 516.
*5 Where the grievance involves allegations of employee
excessive force, as alleged by Bowie, there is an expedited
administrative process. See N.Y.C.R.R. title 7, § 701.8; see
Torres v. Carry, 691 F.Supp.2d 366, 369–70 (S.D.N.Y. 2009).
Complaints and grievances of this nature are forwarded
directly to the superintendent of the facility. Bell v. Napoli,
No. 9:17-CV-850 (ATB), 2018 WL 6506072, at *2 (N.D.N.Y.
Dec. 11, 2018). In such cases the superintendent is required
to order an investigation and render a decision within twenty-
five (25) days. See N.Y.C.R.R., title 7, § 701(a)-(f). If the
superintendent fails to respond within the required twenty-
five (25) day time limit the inmate may appeal his grievance to
the CORC. Disagreement with the superintendent's decision
in the expedited review process also requires an appeal to the
CORC. Id. § 701.8-(g)-(h); see also Espinal v. Goord, 588
F.3d 119,125 (2d Cir. 2009) (explaining IGP and the expedited
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procedure for harassment claims and its appeal mechanism
through the CORC). The Second Circuit has long recognized
this procedure as an “available remedy” for purposes of the
PLRA. See Hall v. County of Saratoga, No. 10–CV–1120
(NAM/CFH), 2013 WL 838284, at *1–2 (N.D.N.Y. Mar. 6,
2013).
Defendants bear the burden of establishing that a prisoner
failed to satisfy the exhaustion requirement. See Jones, 549
U.S. at 216.
1. Did Plaintiff Exhaust his Administrative Remedies?
The record is clear that Bowie filed this action on February
26, 2018, and, at that time, CORC had yet to issue a decision
on his grievance. See Dkt. No. 1; Dkt. No. 29-3 at 9. DOCCS
IGP Assistant Director Rachael Seguin (“Seguin”) declared
that she is the custodian of records maintained by CORC.
Dkt. No. 29-3 at 1. Based upon Seguin's review of DOCCS’
records, Bowie filed a grievance on June 23, 2017 claiming
he was assaulted at Great Meadow on June 10, 2017. Id. at 3.
Bowie's grievance was received by the IGRC Clerk on July
17, 2017 and denied by the Superintendent on August 9, 2017.
Id. at 3-4. Seguin also reviewed CORC records for appeals
received from Plaintiff relating to his allegations in this
action. Id. at 3. Based upon Sequin's review, CORC received
Bowie's appeal of the Superintendent's determination on
August 29, 2017 and decided the appeal on October 17, 2018
– approximately eight months after Bowie commenced this
action. Dkt. No. 29-3 at 4. A copy of Bowie's grievance, the
Superintendent's response, documentation of CORC's receipt
of Bowie's appeal, and CORC's response are attached to
Seguin's Declaration as Exhibit A. Id. at 6-9.
Thus, Bowie did not fully exhaust his administrative
remedies prior to filing this lawsuit as CORC's decision
was outstanding. White v. Drake, No. 10-CV-1034 (GTS/
DRH), 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11,
2011) (“Included within the IGP's exhaustion requirement
is the prerequisite that the inmate file an appeal with
CORC and receive a response from CORC prior to
filing a federal lawsuit.”) (citation omitted). The fact that
Bowie subsequently exhausted his administrative remedies is
irrelevant as he was required to properly exhaust before he
sued. See Burgos v. Craig, 307 Fed. App'x 469, 471 (2d Cir.
2008).
2. Availability of Administrative Remedies
Having determined that Bowie failed to exhaust his
administrative remedies, the Court examines whether he
should be excused from the exhaustion requirement because
administrative remedies were unavailable.
A prisoner's failure to exhaust administrative remedies may
be excused if remedies were unavailable to the inmate. Ross,
136 S.Ct. at 1858 (“An inmate [...] must exhaust available
remedies, but need not exhaust unavailable ones.”). There are
three potential circumstances where administrative remedies
may be unavailable: (1) where the administrative procedure
technically exists but operates as a “dead end – with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates”; (2) where the administrative scheme is
“so opaque that it becomes, practically speaking, incapable
of use”; and (3) where prison administrators “thwart inmates
from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Williams v.
Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (quoting Ross,
136 S.Ct. at 1858-1861).
*6 Courts within this Circuit are split as to whether a
delay by CORC constitutes unavailability that would excuse
a plaintiff's failure to exhaust his administrative remedies. See
Hayes v. Dahkle, No. 9:16-CV-1368 (TJM/CFH), 2018 WL
7356343, at *9 (N.D.N.Y. Dec. 11, 2018) (collecting cases);
but cf. Henderson v. Annucci, No. 14-CV-445A, 2016 WL
3039687, at *9 (W.D.N.Y. March 14, 2016) (excusing the
prisoner's failure to exhaust because, after two years, CORC's
decision was still outstanding); see also High v. Switz,
No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3736794, at *5
(N.D.N.Y. July 9, 2018), report and recommendation adopted
sub nom., 2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018) (noting
that the Second Circuit has not decided the precise issue
set forth herein) (citing Gizewski v. New York State Dep't
of Corr. & Cmty. Supervision, 692 Fed. App'x 668 (2d Cir.
2017)). In some instances, Courts in this District have found
that a delay by CORC does not excuse a prisoner's failure
to exhaust. See Feliz v. Johnson, No. 9:17-CV-1294 (DNH/
ATB), 2019 WL 3491232, at *1 (N.D.N.Y. Aug. 1, 2019)
(citing, inter alia, Casey v. Brockley, No. 9:13-CV-01271,
2015 WL 8008728, at *6 (N.D.N.Y. Nov. 9, 2015), report-
recommendation and order adopted by, 2015 WL 7864161
(N.D.N.Y. Dec. 3, 2015) (finding five month delay by CORC
in rendering decision on appeal did not excuse the plaintiff
from exhaustion requirement)); see also Staples v. Patane,
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
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No. 9:17-CV-0703 (TJM/TWD), 2018 WL 7361009, at *9
(N.D.N.Y. Dec. 7, 2018) (concluding that more than ten
month delay was insufficient for finding unavailability).
In this case, CORC's records reveal that Bowie's appeal was
received on August 29, 2017. Dkt. No. 29-3 at 8. “[P]ursuant
to N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(3)(i),
‘[i]f a grievant does not receive a copy of the written notice
of receipt within 45 days of filing an appeal [to CORC],
the grievant should contact the IGP supervisor in writing to
confirm that the appeal was filed and transmitted to CORC.’
” Fox v. Lee, No. 9:15-CV-0390 (TJM/CFH), 2018 WL
8576600, at *7 (N.D.N.Y. Dec. 18, 2018) (citing N.Y. Comp.
Codes R. & Regs. tit. 7, § 701.5(d)(3)(i)). The record herein
lacks evidence that Bowie received confirmation or notice of
the receipt of his appeal.
In High, the plaintiff filed an appeal with CORC on February
6, 2017. High, 2018 WL 3736794, at *3. “[A]fter not hearing
from CORC, [the] [p]laintiff sent CORC a letter asserting that
CORC had exceeded the timeline and that he had therefore
exhausted his administrative remedies, and would be filing a
claim in Court.” Id. On September 12, 2017, the plaintiff filed
his federal complaint. Id. In February 2018, CORC issued a
decision, one year after the plaintiff filed his appeal to CORC.
High, 2018 WL 3736794, at *3. The Court noted that “[t]here
is no instruction [in the IGP] on what a grievant is to do if
he or she has appealed to CORC, the final step, and has not
received a response.” High, 2018 WL 3736794, at *5. In that
case, the Court noted that, “under the hopefully unique facts
of this case,” the failure to exhaust was excused. Id. at *5.
Here, CORC should have responded by September 29,
2017. See 7 NYCRR §§ 701.5(d)(3)(ii), 701.8(i). A decision
however, was not issued until October 17, 2018, more than
one year beyond the thirty days required by the IGP. While
the Court is troubled by the excessive delay and lack of
explanation for said delay by counsel or Seguin, the facts
herein are distinguishable from High because Bowie has
not offered any evidence suggesting that he received written
notice that the appeal was filed or that he attempted to
contact CORC or the IGRC at Great Meadow C.F. regarding
the status of his appeal before commencing this action.
Indeed, the Complaint is devoid of any reference to the
grievance, the IGP, or Bowie's attempts to exhaust. See
generally, Dkt. No. 1. Because the facts of this case are
similar to those presented in Staples and Fox, on the record
before the Court, the undersigned concludes that CORC's
delay in rendering a decision did not excuse Bowie from
the exhaustion requirement. Staples, 2018 WL 7361009 at
*9; see also Hayes, 2018 WL 7356343, at *10 (“[...] there
is no indication in the record that plaintiff wrote to CORC
regarding the status of his appeal and CORC further neglected
to respond.”); Fox, 2018 WL 8576600, at *7 (granting
summary judgment because the plaintiff did not proffer
evidence that he wrote to the IGRC or CORC inquiring as
to the status of his appeals and “never contacted Eastern's
[IGP supervisor] in writing ... to confirm that any of his
appeals were filed and transmitted to CORC.”); see also
Ulmer v. Bedore, No. 9:15-CV-00497 (DNH/TWD), 2018
WL 7291499, at *7 (N.D.N.Y. Nov. 13, 2018) (finding no
excuse for failure to fully exhaust without evidence in the
record that Plaintiff contacted the IGRC or CORC inquiring
as to the status of his appeal before filing his lawsuit); see
also Berkley v. Ware, No. 9:16-CV-1326 (LEK/CFH), 2018
WL 3736791, at *6 (N.D.N.Y. July 6, 2018) (“Plaintiff has
not proffered evidence that he wrote to the Franklin IGRC or
CORC inquiring as to the status of his appeal.”).
*7 Accordingly, it is recommended that Defendants’
motion for summary judgment be granted based on Bowie's
failure to exhaust his claims. Because “[f]ailure to exhaust
administrative remedies is often a temporary, curable
procedural flaw,” and “[i]f the time permitted for pursuing
administrative remedies has not expired, a prisoner ... can
cure the defect by exhausting [the available remedies] and
reinstating his suit.” Berry v. Kerik, 366 F.3d 85, 87 (2d Cir.
2003) (amended 2004) (quoting Snider v. Melindez, 199 F.3d
108, 111–12 (2d Cir. 1999)). In this case, the alleged incidents
in the underlying action occurred in 2017 and thus, are still
within the applicable statute of limitations.
IV. CONCLUSION
WHEREFORE, based on the findings set forth above, it is
hereby:
RECOMMENDED that Defendants’ motion for summary
judgment (Dkt. No. 29) be GRANTED without prejudice;
and it is further
RECOMMENDED that the Complaint be DISMISSED
without prejudice; and it is further
ORDERED that copies of this Report-Recommendation and
Order be served on the parties in accordance with the Local
Rules.
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
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Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 7 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 6(a), 6(e), 72.
7 If you are proceeding pro se and are served with this
Order by mail, three additional days will be added
to the fourteen-day period, meaning that you have
seventeen days from the date the order was mailed
to you to serve and file objections. Fed. R. Civ. P.
6(d). If the last day of that prescribed period falls
on a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed.
R. Civ. P. 6(a)(1)(c).
All Citations
Not Reported in Fed. Supp., 2019 WL 7606078
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Bowie v. Woodruff
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:18-CV-00266
Bowie v. Woodruff et al
— N.D.N.Y. Mar. 01, 2018 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 100 of 306

Bowie v. Woodruff
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Bowie v. Woodruff
2019 WL 7606078 , N.D.N.Y. , Sep. 20, 2019
Report and Recommendation Adopted by
2. Bowie v. Woodruff
2019 WL 5445519 , N.D.N.Y. , Oct. 23, 2019
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 101 of 306

Bowie v. Woodruff
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 102 of 306

Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
2019 WL 5445519
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 5445519
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edmund BOWIE, Plaintiff,
v.
Sergeant Gary WOODRUFF and Correctional
Officer Kyle Brooks, Defendants.
9:18-cv-00266 (BKS/ML)
|
Signed 10/23/2019
Attorneys and Law Firms
Plaintiff pro se: Edmund Bowie, 14-B-0838, Auburn
Correctional Facility, P.O. Box 618, Auburn, New York
13021.
For Defendants: Letitia James, Attorney General for the State
of New York, Richard C. White, The Capitol, Albany, New
York 12224.
MEMORANDUM-DECISION AND ORDER
Hon. Brenda K. Sannes, United States District Judge:
I. INTRODUCTION
*1 Plaintiff Edmund Bowie, a New York State inmate
proceeding pro se, brought this action under 42 U.S.C. §
1983, alleging that Defendants subjected him to excessive
force in violation of the Eighth Amendment. (Dkt. No. 1, at
2–3). On April 26, 2019, Defendants moved for summary
judgment on the ground that Plaintiff failed to exhaust his
administrative remedies. (Dkt. No. 29). Plaintiff did not
respond to the motion, although he requested and was granted
an extension of time to do so. (Dkt. No. 33). This matter
was assigned to United States Magistrate Judge Miroslav
Lovric who, on September 20, 2019, issued a Report-
Recommendation and Order recommending that Defendants'
motion for summary judgment be granted and that Plaintiff's
complaint be dismissed without prejudice. (Dkt. No. 35).
Magistrate Judge Lovric advised the parties that under 28
U.S.C. § 636(b)(1), they had fourteen days within which
to file written objections to the report, and that the failure
to object to the report within fourteen days would preclude
appellate review. (Dkt. No. 35, at 15–16). No objections were
filed.
For the following reasons, Magistrate Judge Lovric's Report-
Recommendation is adopted.
II. STANDARD OF REVIEW
As no objections to the Report-Recommendation have been
filed and the time for filing objections has expired, the
Court reviews the Report-Recommendation for clear error.
See Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y.
2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983
amendment.
III. DISCUSSION
Magistrate Judge Lovric recommended granting Defendants'
motion for summary judgment because Plaintiff commenced
this action before receiving a decision from the Central Office
Review Committee (“CORC”) on his appeal. Plaintiff sent
his appeal to the CORC on August 21, 2017. (Dkt. No. 29-3,
at 7). The CORC received the appeal on August 29, 2017.
(Id. at 8). The CORC did not, however, decide the appeal
within the applicable thirty-day time period. See 7 N.Y.C.R.R.
§ 701.5(d)(3)(ii). Plaintiff commenced this action on March
1, 2018, almost six months after the CORC had received his
appeal. (Dkt. No. 1). The CORC denied Plaintiff's appeal on
October 17, 2018, almost 14 months after the CORC had
received it. (Dkt. No. 29-3, at 9). Magistrate Judge Lovric
determined that the CORC's delay in rendering a decision did
not excuse Plaintiff from the exhaustion requirement. (Dkt.
No. 35, at 14) (citing Staples v. Patane, No. 17-cv-0703,
2018 WL 7361009, 2018 U.S. Dist. LEXIS 207971 (N.D.N.Y.
Dec. 7, 2018), report and recommendation adopted, No. 17-
cv-0703, 2019 WL 757937, 2019 U.S. Dist. LEXIS 26563
(N.D.N.Y. Feb. 20, 2019); Fox v. Lee, No. 15-cv-0390, 2018
WL 8576600, 2018 U.S. Dist. LEXIS 213705 (N.D.N.Y.
Dec. 18, 2018), report and recommendation adopted, No. 15-
cv-0390, 2019 WL 1323845, 2019 U.S. Dist. LEXIS 48967
(N.D.N.Y. Mar. 25, 2019)).
There is a split of authority in this Circuit as to whether,
under the Supreme Court's decision in Ross v. Blake, –––
U.S. ––––, 136 S. Ct. 1850, 195 L.Ed.2d 117 (2016)
and the Second Circuit's decision Williams v. Priatano,
829 F.3d 118 (2d Cir. 2016), this kind of delay by the
CORC in issuing a timely decision to a prisoner's grievance
renders exhaustion unavailable. Compare, e.g., Sherwood
v. Senecal, No. 17-cv-00899, 2019 WL 4564881, at *2–
4, 2019 U.S. Dist. LEXIS 160295, at *4–8 (N.D.N.Y.
Sept. 20, 2019); Mayandeunas v. Bigelow, No. 18-cv-1161,
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
2019 WL 5445519
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2019 WL 3955484, at *4, 2019 U.S. Dist. LEXIS 142452,
at *10 (N.D.N.Y. Aug. 22, 2019) (Suddaby, C.J.); Lovell
v. McAuliffe, No. 18-cv-0685, 2019 WL 4143361, 2019
U.S. Dist. LEXIS 74402 (N.D.N.Y. May 1, 2019), report
and recommendation adopted, No. 18-cv-0685, 2019 WL
4142593, 2019 U.S. Dist. LEXIS 147890 (N.D.N.Y. Aug. 30,
2019); Bell v. Napoli, No. 17-cv-850, 2018 WL 6506072,
2018 U.S. Dist. LEXIS 208503 (N.D.N.Y. Dec. 11, 2018);
Yates v. Smith, No. 17-cv-1227, 2018 WL 4635715, 2018
U.S. Dist. LEXIS 116276 (N.D.N.Y. July 11, 2018), report
and recommendation adopted, No. 17-cv-1227, 2018 WL
3727357, 2018 U.S. Dist. LEXIS 131450 (N.D.N.Y. Aug. 6,
2018); High v. Switz, No. 17-cv-1067, 2018 WL 3736794,
2018 U.S. Dist. LEXIS 114403 (N.D.N.Y. July 9, 2018),
report and recommendation adopted sub nom. High v. PA
Switz, No. 17-cv-1067, 2018 WL 3730175, 2018 U.S. Dist.
LEXIS 131446 (N.D.N.Y. Aug. 6, 2018) with Staples, 2018
WL 7361009, 2018 U.S. Dist. LEXIS 207971; Berkley
v. Ware, No. 16-cv-1326, 2018 WL 3736791, 2018 U.S.
Dist. LEXIS 113521 (N.D.N.Y. July 6, 2018), report
and recommendation adopted, No. 16-cv-1326, 2018 WL
3730173, 2018 U.S. Dist. LEXIS 131445 (N.D.N.Y. Aug.
6, 2018). Although this Court has concluded that this kind
of delay by the CORC in responding to a prisoner's appeal
renders administrative remedies unavailable under Ross,
considering the intra-Circuit split on this issue, the Court
cannot say that the magistrate judge's determination here rises
to the level of clear error. See Warr v. Liberatore, No. 13-
cv-6508, 2018 WL 3237733, at *5, 2018 U.S. Dist. LEXIS
111126, *13–14 (W.D.N.Y. July 3, 2018) (explaining, in the
context of a motion for reconsideration, that “considering the
split in authority ... defendants have not demonstrated that
[district court's decision was] clearly erroneous”).
*2 Finally, the Court notes that, because the CORC has now
rendered a decision on Plaintiff's grievance, (Dkt No. 29-3, at
9), his administrative remedies are now exhausted. Plaintiff
is therefore free to reinstitute his lawsuit, which is dismissed
without prejudice. (Dkt. No. 35, at 15). See Berry v. Kerik,
366 F.3d 85, 87 (2d Cir. 2004) (noting that where a plaintiff
fails to exhaust administrative remedies, and the defect can be
cured, dismissal without prejudice is proper) 1
1 The Court notes that Plaintiff has ample time
to do so because the statute of limitations on
Plaintiff's claim tolled for the duration of the
mandatory administrative exhaustion process—
that is, his limitations period tolled from the time
Plaintiff initiated his grievance process on June
23, 2017 until the CORC issued its final decision
on October 17, 2018. (Dkt. No 29-3, at 3, 9).
Gonzalez v. Hasty, 651 F.3d 318, 323–24 (2d Cir.
2011) (“[W]e join our sister circuits and hold
‘that the applicable statute of limitations must be
tolled while a prisoner completes the mandatory
exhaustion process.’ ” (quoting Brown v. Valoff,
422 F.3d 926, 943 (9th Cir. 2005))).
IV. CONCLUSION
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 35)
is ADOPTED; and it is further
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 29) is GRANTED; and it is further
ORDERED that the complaint is DISMISSED WITHOUT
PREJUDICE; and it is further
ORDERED that the Clerk is directed to close this case; and
it is further
ORDERED that the Clerk serve a copy of this Order upon the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 5445519
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 104 of 306

Bowie v. Woodruff
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:18-CV-00266
Bowie v. Woodruff et al
— N.D.N.Y. Mar. 01, 2018 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 105 of 306

Bowie v. Woodruff
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Bowie v. Woodruff
2019 WL 7606078 , N.D.N.Y. , Sep. 20, 2019
Report and Recommendation Adopted by
2. Bowie v. Woodruff
2019 WL 5445519 , N.D.N.Y. , Oct. 23, 2019
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 106 of 306

Feliz v. Johnson, Not Reported in Fed. Supp. (2019)
2019 WL 3491232
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 3491232
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Juan FELIZ, Plaintiff,
v.
Vonda JOHNSON, MD, Clinton Annex
Correctional Facility; Amber Lashway, Nurse
Practitioner, Clinton Annex Correctional Facility;
and Paul Harriman, Nurse Assistant, Clinton
Annex Correctional Facility, Defendants.
9:17-CV-1294 (DNH/ATB)
|
Signed 08/01/2019
Attorneys and Law Firms
JUAN FELIZ, Plaintiff pro se, 16-A-4711, Greene
Correctional Facility, P.O. Box 975, Coxsackie, NY 12051.
HON. LETITIA JAMES, Attorney General for the State of
New York, OF COUNSEL: KEITH J. STARLIN, ESQ., Ass't
Attorney General, The Capitol, Albany, NY 12224, Attorney
for Defendants.
DECISION and ORDER
DAVID N. HURD, United States District Judge
*1 Pro se plaintiff Juan Feliz brought this civil rights action
pursuant to 42 U.S.C. § 1983. On June 6, 2019, Magistrate
Judge Andrew T. Baxter advised by Report-Recommendation
that defendants' motion for summary judgment be granted and
that the action be dismissed in its entirety without prejudice
for failure to exhaust administrative remedies. Plaintiff timely
filed objections to the Report-Recommendation along with a
motion to amend his complaint.
In his objections, plaintiff advises that on February 13,
2019, “after over fourteen (14) months,” the Central Office
Review Committee (“CORC”) finally issued its decision on
grievance FKN-13836-17 pertaining to unaddressed medical
needs and the alleged falsification of his medical records
by staff at Clinton Correctional Facility. Pl.'s Obj. ¶ 8, ECF
No. 35 (emphasis in original). In his motion to amend, he
“concedes that he submitted the Complaint in this case at
bar, prior to receiving the CORC decision.” Feliz Decl., ¶
3, ECF No. 36–1. Thus, he admits that he failed to exhaust
administrative remedies prior to commencing suit in federal
court. He nonetheless argues he may proceed because the
grievance process was unavailable to him and he is therefore
excused from exhausting. Plaintiff contends the grievance
process was unavailable due to the fact that it “ ‘operates as
a simple dead end’ because DOCCS CORC consistently fails
to timely issue its decision in conformity with 7 NYCRR §
701.5(d)(3)(ii).” Pl.'s Obj. ¶ 11.
The Supreme Court identified three circumstances where
administrative remedies may be unavailable to a prisoner.
Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). First, “an
administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates
as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates.” Id.
“Next, an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.” Id.
Lastly, administrative remedies are unavailable where “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
In the Report-Recommendation, Magistrate Judge Baxter
addressed the unavailability of the grievance process and
concluded “there is no indication on the record that the
grievance process was unavailable to the plaintiff.” Report-
Rec. 10. Magistrate Judge Baxter detailed and rejected
plaintiff's allegations that the process was unavailable due to
lack of a translator and also rejected plaintiff's argument that
the grievance process does not apply to the instant matter. Id.
11.
The Report-Recommendation did not (nor at first glance
the summary judgment briefing) address CORC's fourteen
month delay in rendering a decision on FKN-13836-17.
Courts within this Circuit are split as to whether a delay
by CORC constitutes unavailability that would excuse a
plaintiff's failure to exhaust his administrative remedies. See
Hayes v. Dahkle, No. 9:16-CV-1368, 2018 WL 7356343, at
*9 (N.D.N.Y. Dec. 11, 2018), report-recommendation and
order adopted by, 2019 WL 689234 (N.D.N.Y. Feb. 19,
2019) (McAvoy, S.J.) (analyzing Second Circuit split). Courts
within this District have found that a delay by CORC does
not constitute a basis on which to excuse a plaintiff's failure
to exhaust. See, e.g., Casey v. Brockley, No. 9:13-CV-01271,
2015 WL 8008728, at *6 (N.D.N.Y. Nov. 9, 2015), report-
recommendation and order adopted by, 2015 WL 7864161
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Feliz v. Johnson, Not Reported in Fed. Supp. (2019)
2019 WL 3491232
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
(N.D.N.Y. Dec. 3, 2015) (“CORC's failure to act within the
time frame set out in the regulations does not constitute
a special circumstance justifying the failure to exhaust.”);
Ford v. Smith, No. 9:12-CV-1109, 2014 WL 652933, at *3
(N.D.N.Y. Feb. 19, 2014) (McAvoy, S.J.) (concluding that
CORC's six month delay in responding to his appeal did not
render the grievance process unavailable).
*2 There is no need to decide whether CORC's fourteen
month delay in this case rendered the grievance process
unavailable to plaintiff. This is not a case where the plaintiff “
‘appealed every grievance in this instant matter to the CORC,’
and after CORC failed to respond within the thirty-day time
frame, he ‘didn't know what else to do.’ ” Hayes, 2018 WL
7356343, at *9; see also Peoples v. Fischer, No. 11 Civ.
2694, 2012 WL 1575302, *6 (S.D.N.Y. 2012) reconsideration
granted in part, 898 F. Supp. 2d 618 (S.D.N.Y. 2012)
(“When a prisoner complies with all of the administrative
requirements and makes a good-faith effort to exhaust, he
should not be denied the opportunity to pursue his grievance
in federal court simply because the final administrative
decision maker has neglected to issue a final administrative
decision.”). Nor is this a case
where the plaintiff had taken all steps
he could to fulfill the last step of
the appeal process; where CORC had
neglected to respond, not just during
the thirty day time limit, but for a
period of numerous months thereafter;
where CORC had further neglected to
respond when Plaintiff wrote to CORC
regarding the status of his appeal;
and where CORC had only ultimately
decided the appeal a year later, after the
present [motion] had been filed.
High v. Switz, No. 9:17-CV-1067, 2018 WL 3736794, at *5
(N.D.N.Y. July 9, 2018), report-recommendation and order
adopted by, 2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018)
(Kahn, J.).
Instead, on November 13, 2017, in grievance FKN-13836-17
and subsequent addendums to that grievance, plaintiff
complained of his medical care in regard to cancer treatment
and for the first time made an allegation about falsified
documents by staff stating he had no cancer. 1 On November
16, 2017, the Inmate Grievance Resolution Committee
(“IGRC”) responded in writing to grievance FKN-13836-17.
Plaintiff appealed the IGRC decision to the Superintendent on
November 16, 2017. 2
1 At the time he filed FKN-13836-17, plaintiff was
housed at Franklin Correctional Facility, though
the grievance expressed plaintiff's complaints
regarding his medical care at both Clinton
Correctional Facility and Franklin Correctional
Facility.
2 Plaintiff thereafter filed additional grievances
regarding his medical care and treatment, which
were filed as addendums to pending grievance
FKN-13836-17 and which are detailed in the
Report-Recommendation.
Plaintiff initiated this action on November 27, 2017. Prior to
that date, the Superintendent had not yet issued a response
on grievance FKN-13836-17 and therefore plaintiff could not
yet have appealed the Superintendent's decision to CORC, nor
obviously received any decision from CORC. On November
30, 2017, after plaintiff filed the instant Complaint, the
Superintendent responded to plaintiff's appeal, finding his
claims to be without merit. On December 1, 2017, plaintiff
appealed the Superintendent's decision to CORC, and as
discussed above, CORC issued its decision on February 13,
2019.
As Magistrate Judge Baxter explained in the Report-
Recommendation, plaintiff did not fully exhaust his
administrative remedies prior to commencing this action
because he filed his federal complaint before completing
the DOCCS grievance process. Any delay by CORC in
responding to plaintiff's last level of appeal is irrelevant to
whether the grievance process was unavailable to plaintiff
at the time he filed this suit. This is not a situation where
plaintiff filed his federal complaint while waiting months
for CORC's response. To the contrary, the IGRC's and the
Superintendent's responses to grievance FKN-13836-17 were
timely, and plaintiff had not yet even appealed the relevant
grievance to CORC at the time of filing this action.
*3 Plaintiff has made no other nor new arguments regarding
why or how the grievance procedures were unavailable to
him at the time he filed this suit. Any efforts plaintiff
may have made since the filing of his Complaint, including
his subsequent and timely appeal to CORC, do not cure
his failure to exhaust because the PLRA requires that
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Feliz v. Johnson, Not Reported in Fed. Supp. (2019)
2019 WL 3491232
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
administrative remedies be exhausted before commencing
a lawsuit. Therefore, nothing in plaintiff's objections or his
motion to amend change the fact that plaintiff failed to
exhaust his administrative remedies at the time he brought
suit. Moreover, plaintiff's motion to amend fails to comply
with Northern District of New York Local Rule 7.1(a)(4)
which requires a party moving to amend to attach an unsigned
copy of the proposed amended pleading to its motion papers.
Therefore, based upon a de novo review of the portions
of the Report-Recommendation to which plaintiff objected,
the Report-Recommendation is accepted and adopted in all
respects. See 28 U.S.C. § 636(b)(1). Plaintiff's motion to
amend will be denied both for his failure to comply with the
Local Rules and also because there are no set of facts that
could cure the instant basis for dismissal.
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment is
GRANTED;
2. Plaintiff's Complaint is DISMISSED WITHOUT
PREJUDICE;
3. Plaintiff's motion to amend, ECF No. 36, is DENIED;
and
4. The Clerk is directed to enter judgment accordingly and
close the file.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 3491232
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 109 of 306

Feliz v. Johnson
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:17-CV-01294
Feliz v. Annucci et al
— N.D.N.Y. Nov. 27, 2017 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 110 of 306

Feliz v. Johnson
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (5)
Direct History (2)
1. Feliz v. Johnson
2019 WL 5197216 , N.D.N.Y. , June 06, 2019
Report and Recommendation Adopted by
2. Feliz v. Johnson
2019 WL 3491232 , N.D.N.Y. , Aug. 01, 2019
Related References (3)
3. Feliz v. Annucci
2017 WL 11831941 , N.D.N.Y. , Dec. 13, 2017
4. Feliz v. Annucci
2018 WL 11611300 , N.D.N.Y. , May 30, 2018
5. Feliz v. Johnson
2019 WL 13438882 , N.D.N.Y. , May 15, 2019
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 111 of 306

Feliz v. Johnson
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 112 of 306

White v. Drake, Not Reported in F.Supp.2d (2011)
2011 WL 4478988
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 4478988
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
John H. WHITE, Plaintiff,
v.
Raymond DRAKE, Correctional Officer,
Upstate Correctional Facility, Defendant.
No. 10–CV–1034 (GTS/DRH).
|
Aug. 11, 2011.
Attorneys and Law Firms
John H. White, Malone, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of
New York, Krista A. Rock, Esq., Assistant Attorney General,
of Counsel, Albany, NYk, for Defendant.
REPORT–RECOMMENDATION AND ORDER 1
1 This matter was referred to the undersigned for
report and recommendation pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y.L.R. 72.3(c).
DAVID R. HOMER, United States Magistrate Judge.
*1 Plaintiff pro se John H. White (“White”), an inmate in the
custody of the New York State Department of Correctional
and Community Supervision (“DOCCS”), brings this action
pursuant to 42 U.S.C. § 1983 alleging that defendant
Raymond Drake (“Drake”), a corrections officer employed by
DOCCS, violated his constitutional rights under the Eighth
Amendment when Drake subjected him to excessive force.
Compl. (Dkt. No. 1). Presently pending is Drake's motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. Nos. 12, 21,
40. White initially opposed the motion, Dkt. Nos. 17, 25, but
now appears to agree that this action should be dismissed
without prejudice. Dkt. Nos. 41, 42. For the following
reasons, it is recommended that Drake's motion be granted
and that the complaint be dismissed without prejudice.
I. Background
The facts are related in the light most favorable to White as
the non-moving party. See Ertman v. United States, 165 F.3d
204, 206 (2d Cir.1999).
On June 27, 2010 while incarcerated at Upstate Correctional
Facility, White was notified by a corrections officer that
he had a visitor. Dkt. No. 1–1 at 1. After waiting for
approximately thirty minutes without being summoned for
the visit, White asked the other officers why he was not being
taken to his visitor. Id. An officer responded that White's
visit was cancelled because his visitor was denied entrance.
Id. Drake then approached White's cell door and informed
him that his visitor was in possession of drugs and had been
apprehended by the local police. Id.; Compl. ¶ 6. Drake then
walked away from White's cell, as White voiced charges of
“official misconduct” while lying on the floor and speaking
through the open area of his cell door. Dkt. No. 1–1 at 1. Drake
then returned to the cell and “deliberately kicked the [cell]
door ... causing injury to [White's] mouth, nose, [and] right
jaw.” Id.; see also Compl. ¶ (6). White's nose began to bleed
and he experienced immediate pain in his jaw. Dkt. No. 1–
1 at 1. White then stood up and asked Drake why he would
intentionally kick the cell door when he knew that White was
lying next to it. Dkt. No. 1–1 at 2. Drake responded that he
did so because he was aware that White was making a record
of the incident and “could do it.” Id.
That same day, White filed a grievance complaining that
he had been (1) treated unfairly because he was black; (2)
denied notification; (3) misled concerning the details of his
visitor; and (4) subjected to excessive force. Dkt. No. 1–
1 at 2–4. White's grievance was denied and he appealed
administratively. 2 Compl. ¶ 4(b). However, White never
received a final determination from DOCCS after his last
appeal. Id. ¶ 4(b)(I). White “wr [ote] to the Commissioner
concerning the delay ... no one ha[d] responded thus far [and
White felt that he was] be[ing] denied any responses.” Id. ¶
4(b)(ii). On August 9, 2010, White filed the present action.
Compl. at ¶ 8. On October 7 and November 3, 12, and 20,
2010, White wrote to the undersigned to apprise the court that
he had still not received a final determination of his grievance.
Dkt. Nos. 10, 11, 13, 22. 3
2 “The IGP [Inmate Grievance Program] is a
three-step process that requires an inmate to:
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White v. Drake, Not Reported in F.Supp.2d (2011)
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(1) file a grievance with the IGRC [Inmate
Grievance Resolution Committee]; (2) appeal to
the superintendent within four working days of
receiving the IGRC's written response, and (3)
appeal to the CORC [Central Office Review
Committee] ... within four working days of receipt
of the superintendent's written response.” Abney
v. McGinnis, 380 F.3d 663, 668 (2d Cir.2004)
(internal citations omitted).
3 On December 1, 2010, Drake filed a supplemental
memorandum of law in this action seeking
dismissal of White's claim for White's failure to
exhaust his administrative remedies. Dkt. No. 21.
On July 25, 2011, the present action was stayed to
allow DOCCS or CORC to file a decision regarding
White's pending administrative appeal. Dkt. No.
39. On August 1, 2011, Drake responded, providing
the Court with a copy of CORC's denial of White's
grievance, dated November 24, 2010. Dkt. No. 40.
II. Discussion
*2 White contends that his constitutional rights were
violated when Drake harassed and subjected him to excessive
force. Drake moves for dismissal because (1) White has failed
to exhaust his administrative remedies, (2) there are no merits
to White's constitutional claim, and (3) Drake is entitled to
qualified immunity. 4
4 It is unnecessary to address the second and third
grounds of Drake's motion in light of White's
acknowledged failure to exhaust administrative
remedies and those grounds will not be further
addressed herein.
A. Legal Standard
Rule 12(b)(6) authorizes dismissal of a complaint that
states no actionable claim. When considering a motion to
dismiss, “a court must accept the allegations contained in the
complaint as true, and draw all reasonable inferences in favor
of the non-movant.” Sheppard v. Beerman, 18 F.3d 147, 150
(2d Cir.1994). However, this “tenet ... is inapplicable to legal
conclusions[; thus, t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, ––– U.S. ––––, ––––,
129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (holding
that “entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action ... [as] courts are not bound to accept as true a
legal conclusion couched as a factual allegation.”)).
Accordingly, to defeat a motion to dismiss, a claim must
include “facial plausibility ... that allows the court to draw
the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing
Twombly, 550 U.S. at 556 (explaining that the plausibility
test “does not impose a probability requirement ... it simply
calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence of illegal [conduct].”)); see
also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir.2009)
(holding that, “[o]n a motion to dismiss, courts require
enough facts to state a claim to relief that is plausible ....”)
(citations omitted). Determining whether plausibility exists is
“a content specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal,
129 S.Ct. at 1950–51.
When, as here, a party seeks dismissal against a pro se
litigant, a court must afford the non-movant special solicitude.
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir.2006); see also Sealed Plaintiff v. Sealed Defendant #
1, 537 F.3d 185, 191–92 (2d Cir.2008) (“On occasions too
numerous to count, we have reminded district courts that
‘when [a] plaintiff proceeds pro se, ... a court is obliged to
construe his pleadings liberally.’ “ (citations omitted)).
B. Failure to Exhaust
Under 42 U.S.C. § 1997e(a), an inmate must exhaust
all administrative remedies prior to bringing any suits
challenging prison conditions, including federal civil rights
cases. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002); see also Woodford v. Ngo, 548 U.S. 81,
83, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This exhaustion
requirement applies to all prison condition claims. Porter, 534
U.S. at 532. “[A]ny deprivation that does not affect the fact or
duration of a prisoner's overall confinement is necessarily a
condition of that confinement.” Jenkins v. Haubert, 179 F.3d
19, 28 (2d Cir.1999). The exhaustion requirement also applies
even if the administrative grievance process does not provide
for all the relief requested by the inmate. Nussle, 534 U.S. at
524.
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White v. Drake, Not Reported in F.Supp.2d (2011)
2011 WL 4478988
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
*3 While the Supreme Court has deemed exhaustion
mandatory, the Second Circuit has recognized that “certain
caveats apply.” Ruggiero v. County of Orange, 467 F.3d 170,
175 (2d Cir.2006) (citing Giano v. Goord, 380 F.3d 670, 677
(2d Cir.2004)).
A plaintiff's failure to exhaust
administrative remedies may be
excused if: (1) administrative remedies
were not actually available; (2)
defendants have forfeited their
affirmative defense of non-exhaustion
or are estopped from raising such a
defense because of their own actions;
or (3) special circumstances exist, such
as a reasonable misinterpretation of
[DOCCS] regulations.
Torres v. Carry, 672 F.Supp.2d 338, 344 (S.D.N.Y.2009)
(citations omitted).
Exhaustion for an inmate in DOCCS custody is generally
achieved through the IGP). See N.Y. Comp.Codes R. & Regs.
tit. 7, § 701 .1, et seq.; see also n. 2 supra. Included within
the IGP's exhaustion requirement is the prerequisite that the
inmate file an appeal with CORC and receive a response
from CORC prior to filing a federal lawsuit. Torres, 672
F.Supp.2d at 344; see also N .Y. Comp.Codes R. & Regs.
tit. 7 § 701.5(d)(2)(ii) (“The CORC shall review each appeal,
render a decision on the grievance, and transmit its decision ...
within 30 calendar days”).
In this case, the CORC did not render its decision on the final
stage of White's appeal until after White had commenced this
action. Thus, exhaustion was completed during the pendency,
not prior to the commencement of, this action. The facts
are clear that White complied with the IGP and filed a
final appeal to CORC. The facts also demonstrate that, after
White commenced the present action, the final determination
was rendered by CORC, thus terminating the administrative
process. There are no allegations that White did not know
how the grievance process worked or that it was unavailable
to him. Accordingly, the question presented by this motion is
whether White satisfied the exhaustion requirement in these
circumstances.
“The Courts of Appeals for the First, Second, Third, Seventh,
Tenth, Eleventh, and D[istrict of] C[olumia] ... have held
that § 1997(e) requires exhaustion before the filing of a
complaint and that a prisoner does not comply with this
requirement by exhausting available remedies during the
course of litigation.” McKinney v. Carey, 311 F.3d 1198,
1199 (9th Cir.2002); see also Neal v. Goord, 267 F.3d 116,
122 (2d Cir.2001) (“Subsequent exhaustion after suit is filed
therefore is insufficient.”) abrogated in part on other grounds
by Porter, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12.
This is because the statutory “language clearly contemplates
exhaustion prior to the commencement of the action as an
indispensable requirement [and e]xhaustion subsequent to
the filing of the suit will not suffice.” Medina–Claudio v.
Rodriguez–Mateo, 292 F.3d 31, 36 (1st Cir.2002) (citations
omitted); see also 42 U.S.C. § 1997(e) (“No action shall
be brought with respect to prison conditions under section
1983 ... by a prisoner ... until such administrative remedies
as are available are exhausted.”); Perez v. Wisconsin Dep't of
Corr., 182 F.3d 532, 534–35 (7th Cir.1999) (explaining that
“Congress could have written a statute making exhaustion a
precondition to judgment, but it did not. The actual statute
makes exhaustion a precondition to suit.” ).
*4 Where the administrative process has been started, but
has yet to conclude, courts have dismissed federal claims
without prejudice and granting leave to reopen when the
administrative process has ceased and the result is a denial
of the inmate's grievance. Torres, 672 F.Supp.2d at 345–
46; see also Neal, 267 F.3d at 123 (explaining that inmates'
claims which are “dismissed without prejudice, ... may simply
[be] re-file[d] ... after fully complying with the exhaustion
requirement.”); Chalif v. Spitzer, No. 05–CV–1355, 2008 WL
1848650, at *13 (“The fact that a grievance is filed, or the
process is completed, subsequent to commencement of suit
will not salvage an otherwise premature filing.”) (citations
omitted). Therefore, it is clear that the case law requires
White's complaint to be dismissed without prejudice to filing
a new action for a failure to fully exhaust his administrative
remedies prior to filing the instant complaint.
Thus, White will be required to re-commence this action
and re-serve Drake even though the exhaustion requirement
has now been satisfied and where the delay in completing
the administrative process was apparently caused solely by
DOCCS delay at the final appeal stage. This inefficiency
imposes additional burdens and costs not only on White and
Drake but also on the Court. This factor has already been
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White v. Drake, Not Reported in F.Supp.2d (2011)
2011 WL 4478988
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
contemplated, and rejected, by various courts, including the
Second Circuit.
While it is true that requiring dismissal
may, in some circumstances, occasion
the expenditure of additional resources
on the part of the parties and
the court, it seems apparent that
Congress has made a policy judgment
that this concern is outweighed
by the advantages of requiring
exhaustion prior to the filing of
suit ... [Therefore r]equiring dismissal
without prejudice when there is no
presuit exhaustion provides a strong
incentive that will further these
Congressional objectives; permitting
exhaustion pendente lite will
inevitably undermine attainment of
them.
McKinney, 311 F.3d at 1200–1201; Neal, 267 F.3d at 123
(acknowledging that in an individual case, requiring dismissal
for failure to exhaust may be judicially inefficient but
ultimately concluding that exhaustion must be mandatory
because a policy of generally “allowing prisoner suits
to proceed, so long as the inmate eventually fulfils the
exhaustion requirement, undermines Congress' directive to
pursue administrative remedies prior to filing a complaint in
federal court.”). Thus, arguments of judicial inefficiency or
additional expense do not serve as compelling reasons for
denying defendant's present motion.
Accordingly, Drake's motion to dismiss for failure to exhaust
should be granted.
III. Conclusion
For the reasons stated above, it is hereby RECOMMENDED
that Drake's motion to dismiss (Dkt. No. 12) be GRANTED
and the complaint DISMISSED WITHOUT PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may
lodge written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993);
Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
All Citations
Not Reported in F.Supp.2d, 2011 WL 4478988
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 116 of 306

White v. Drake
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:10cv01034
WHITE v. DRAKE
— N.D.N.Y. Aug. 26, 2010 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 117 of 306

White v. Drake
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. White v. Drake
2011 WL 4478988 , N.D.N.Y. , Aug. 11, 2011
Report and Recommendation Adopted by
2. White v. Drake
2011 WL 4478921 , N.D.N.Y. , Sep. 26, 2011
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 118 of 306

White v. Drake, Not Reported in F.Supp.2d (2011)
2011 WL 4478921
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 4478921
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
John H. WHITE, Plaintiff,
v.
Raymond DRAKE, Correctional Officer,
Upstate Correctional Facility, Defendant.
No. 9:10–CV–1034 (GTS/DRH).
|
Sept. 26, 2011.
Attorneys and Law Firms
John H. White, Malone, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of
New York, Krista A. Rock, Esq., Assistant Attorney General,
Albany, NY, for Defendant.
DECISION and ORDER
Hon. GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this pro se prisoner civil
rights action filed by John H. White (“Plaintiff”) against
Upstate Correctional Facility Correctional Officer Raymond
Drake (“Defendant”) pursuant to 42 U.S.C. § 1983, are
the following: (1) Defendant's motion to dismiss Plaintiff's
Complaint for failure to state a claim upon which relief
can be granted pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. No.
12); (2) United States Magistrate Judge David R. Homer's
Report–Recommendation recommending that Defendant's
motion be granted and that Plaintiff's Complaint be dismissed
without prejudice (Dkt. No. 44); and (3) Plaintiff's cross-
motion to amend his Complaint pursuant to Fed.R.Civ.P.
15(a)(2) (Dkt. No. 45). For the reasons set forth below,
the Report–Recommendation is accepted and adopted in its
entirety; Defendant's motion is granted; Plaintiff's Complaint
is dismissed without prejudice; and Plaintiff's cross-motion to
amend his Complaint is denied.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
Plaintiff commenced this action on August 9, 2010. (Dkt.
No. 1.) Generally, liberally construed, Plaintiff's Complaint
alleges that, on June 27, 2010, Defendant wrongfully
prevented him from seeing a visitor, and assaulted him during
a disagreement regarding the visitor. (Id.)
More specifically, Plaintiff alleges as follows. After being
notified that he had a visitor on June 27, 2010, and
waiting more than 30 minutes for an escort, Plaintiff
addressed his concerns with Defendant regarding his “visit
being delayed.” (Id.) Defendant shouted at Plaintiff that
his visit would not be taking place because his visitor
had been apprehended by the Franklin County Police for
drug smuggling-a fact that was false. (Id.) When Plaintiff
complained of “official misconduct,” by “speaking in the
open area under [his cell] door,” Defendant “kicked the
door” of Plaintiff's cell “several times,” “causing injury to
[Plaintiff's] mouth, nose & right jaw,” more specifically,
causing his “nose ... to bleed on the floor,” and him
to experience “pain in the right side of [his] jaw.” (Id.)
Aware that the events were being recorded “on VHS/Video,”
Plaintiff asked Defendant why he had kicked the door; and
Defendant offered a response that indicated a retaliatory and/
or malicious intent. (Id.) Finally, after Plaintiff submitted
a grievance to a “Grievance Unit Investigator” regarding
Defendant's conduct, Defendant “willfully, knowingly, and
intelligently submitted a written statement denying the
allegations,” which “denied Plaintiff his right to an [sic] fair
and impartial investigation ....“ (Id.)
Construed with the utmost of special liberality, Plaintiff's
Complaint attempts to assert the following five claims
based on the above-described factual allegations: (1) a
claim that Defendant subjected him to verbal harassment
followed by a subsequent physical assault, rendering the
verbal harassment actionable under the Eighth Amendment;
(2) a claim that Defendant intentionally made false statements
to Plaintiff regarding his visitor, in violation of the Eighth
and/or Fourteenth Amendment; (3) a claim that Defendant
wrongfully interfered with Plaintiff's right to visitation from
and communication with the “outside world,” in violation
of the First, Eighth and/or Fourteenth Amendments; (4) a
claim that Defendant wrongfully interfered with Plaintiff's
right to the grievance process by intentionally making false
statements to the Grievance Unit Investigator, in violation of
the First and/or Fourteenth Amendments; and (5) a claim that
Defendant subjected him to excessive force, in violation of
the Eighth Amendment. (See generally id.; see also Dkt. No.
17 [Plf.'s Response to Def.'s Motion to Dismiss].) 1
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White v. Drake, Not Reported in F.Supp.2d (2011)
2011 WL 4478921
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
1 The Court notes that, while Plaintiff used the word
“discrimination” at one point in his Complaint, the
Court does not liberally construe his Complaint as
attempting to assert an equal protection claim under
the Fourteenth Amendment, given (1) the lack
of factual allegations in his Complaint plausibly
suggesting that he is a member of a protected class,
and/or how he was discriminated against, and (2)
the fact that he does not articulate such a claim in
his response to Defendant's motion to dismiss.
*2 Familiarity with the remaining factual allegations
supporting these claims in Plaintiff's Complaint is assumed
in this Decision and Order, which is intended primarily for
review by the parties.
B. Defendant's Motion to Dismiss
On November 15, 2010, Defendant filed a motion to dismiss
the Complaint for failure to state a claim, pursuant to
Fed.R.Civ.P. 12(b)(6). (Dkt. No. 12.) Generally, in his motion,
Defendant asserts the following eight arguments: (1) to the
extent that Defendant is sued in his official capacity, he is
protected from liability as a matter of law by the Eleventh
Amendment; (2) Plaintiff's claim of verbal harassment
(under the Eighth and/or Fourteenth Amendments) should
be dismissed, because Plaintiff has no constitutional right
to be free from verbal harassment; (3) Plaintiff's claim that
Defendant intentionally made false statements to Plaintiff
regarding his visitor (in violation of the Eighth and/or
Fourteenth Amendments) should be dismissed, because
Plaintiff has no constitutional right to be free from false
statements; (4) Plaintiff's claim that Defendant wrongfully
interfered with Plaintiff's right to visitation (in violation of
the First, Eighth and/or Fourteenth Amendments) should be
dismissed, because Plaintiff has no constitutional right to
visitation; (5) Plaintiff's claim that Defendant wrongfully
interfered with Plaintiff's right to the grievance process
(in violation of the First and/or Fourteenth Amendments)
should be dismissed, because Plaintiff has no constitutional
right to the grievance process; (6) Plaintiff's claim that
Defendant subjected him to excessive force (in violation
of the Eighth Amendment) should be dismissed, because
Plaintiff has failed to allege facts plausibly suggesting that
the use of force against him was “objectively, sufficiently
serious”; (7) in the alternative, all of Plaintiff's claims should
be dismissed, because Defendant is protected from liability
as a matter of law by the doctrine of qualified immunity;
and (8) Defendant is entitled to a protective order, pursuant
Fed.R.Civ.P. 26(c), staying discovery in this action, pending
the Court's determination of Defendant's motion. (Dkt. No.
12, Attach.1.)
On November 24, 2010, Plaintiff filed a response to
Defendant's motion. (Dkt. No. 17.) Generally, in his response,
Plaintiff asserts the following eight arguments: (1) he is not
suing Defendant in his official capacity but his individual
capacity; (2) he was subjected to both verbal harassment
and physical assault, which, when combined, may constitute
cruel and unusual punishment under the Eighth Amendment;
(3) Defendant's false statements are actionable because they
were intended to annoy and harass Plaintiff in violation of
7 NYCRR 701.2(e) (and because they were accompanied by
a physical assault); (4) Defendant's challenge to Plaintiff's
interference-with-visitation claim is “unnecessary,” because
Plaintiff asserts no such claim; (5) Plaintiff does have a
constitutional right to the grievance process, under the First
and/or Fourteenth Amendments, and Defendant violated
that right by giving false statements during that process;
(6) Plaintiff has alleged facts plausibly suggesting that
the use of force against him was “objectively, sufficiently
serious,” by alleging facts plausibly suggesting that [a]
Defendant's use of force was malicious and/or sadistic, with
the purpose of causing harm, [b] Defendant's use of force
caused Plaintiff wanton pain, and [c] Defendant's use of force
violated N.Y. Correction Law § 137(5); (7) Defendant is not
entitled to qualified immunity, because Plaintiff has alleged
facts plausibly suggesting that Defendant was aware of the
regulations and law; and (8) while Defendant is entitled to
a protective order barring discovery, the Court should direct
Defendant to provide any copies of audio/video tapes relating
to the alleged incident(s) giving rise to this action. (Id.)
*3 On December 1, 2010, Defendant filed (with leave of
the Court) a supplemental memorandum of law in support
of its motion to dismiss. (Dkt. No. 21.) Generally, in
that supplemental memorandum of law, Defendant argues
that, because Plaintiff has conceded (in Paragraph 4 of his
Complaint as well as in Dkt. Nos. 10 and 11) that he failed to
exhaust his administrative remedies before filing this action,
this action should be dismissed. (Id.)
On December 3, 2010, Plaintiff filed (with leave of the
Court) a response to Defendant's supplemental memorandum
of law. (Dkt. No. 25.) Generally, liberally construed,
Plaintiff's response asserts the following three arguments:
(1) he should not be required to exhaust his administrative
remedies because those remedies (through actions of various
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administrative officials) have been rendered unavailable
to him; (2) if the Court would allow, he would file
an Amended Complaint asserting claims arising from the
actions of various administrative officials in rendering his
administrative remedies unavailable to him; and (3) even if
the Court were inclined to dismiss this action due to his failure
to exhaust his administrative remedies, it should do so only
without prejudice. (Id.)
On January 14, 2011, Defendant filed (with leave of the
Court) a reply to Plaintiff's response. (Dkt. No. 29.) Generally,
in that reply, Defendant repeats his argument that this action
should be dismissed based on Plaintiff's failure to exhaust his
administrative remedies. (Id.) In addition, Defendant asserts
arguments not relevant to the exhaustion issue but relevant to
the arguments raised in the parties' prior exchange of briefs.
(Id.) 2
2 The Court notes that it did not, through its Text
Order of November 22, 2010, grant Defendant
leave to file a reply further briefing such issues.
On January 24, 2011, without prior leave of the Court,
Plaintiff filed a sur-reply to Defendant's reply. (Dkt. No. 30.)
Generally, in that unauthorized sur-reply, Plaintiff argues that
he “stands by” his prior submissions to the Court. (Id.)
On July 25, 2011, the Court issued an Order staying further
proceedings in this case until September 1, 2011, “to allow
DOCS and CORC to render the final disposition to White's
appeal in the present case.” (Dkt. No. 39, at 3.)
On August 1, 2011, Defendant filed a letter advising the Court
that CORC rendered a final disposition to Plaintiff's appeal on
November 24, 2010. (Dkt. No. 40.)
On August 8, 2011, Plaintiff filed a response to Defendant's
letter. (Dkt. No. 42.) Generally, liberally construed, that
response argues as follows: (1) his original Complaint in
this action should be dismissed without prejudice, with leave
“to renew or amend within 45 days”; and (2) when that
original Complaint is dismissed, an Order should be issued
that [a] grants Plaintiff 45 days in which to file an Amended
Complaint, which, inter alia, will assert claims arising from
correctional officials' alleged intentional destruction of the
audio/video tape recording of the incident giving rise to his
original complaint, and [b] lifts the stay currently imposed on
discovery, so that Plaintiff can obtain documents relevant to
the investigation of his grievance. (Dkt. No. 42.)
*4 On August 10, 2011, Defendant filed a letter advising
the Court that, while Defendant does not oppose Plaintiff's
request to dismiss the action without prejudice, Defendant
“would oppose a motion to amend the complaint as
futile, based, inter alia, upon plaintiff's failure to exhaust
administrative remedies prior to commencing suit.” (Dkt. No.
43.)
C. Magistrate Judge Homer's Report–
Recommendation
On August 11, 2011, Magistrate Judge Homer issued a
Report–Recommendation recommending that Defendant's
motion be granted, and that Plaintiff's Complaint be dismissed
without prejudice. (Dkt. No. 44.) Generally, Magistrate
Judge Homer based his Report–Recommendation not on
the eight arguments asserted by Defendant in his original
memorandum of law (Dkt. No. 12), but on the fact that,
according to Plaintiff's own factual allegations, he had not
exhausted his available administrative remedies before filing
this action (on August 9, 2010). (Dkt. No. 44.) Moreover,
it is worth noting that Magistrate Judge Homer specifically
recommended not that Plaintiff's Complaint be conditionally
dismissed (i.e., if he does not file of an Amended Complaint
curing the deficiencies in his exhaustion allegations), but that
the Complaint be dismissed without prejudice, the action
be closed, and Plaintiff be required to file a new action.
(Id.) Familiarity with the particular grounds of Magistrate
Judge Homer's Report–Recommendation is assumed in this
Decision and Order, which is intended primarily for the
review of the parties.
Plaintiff failed to file an Objection to Magistrate Judge
Homer's Report–Recommendation, and the deadline by
which to do so has expired. (See generally Docket Sheet.)
However, on August 15, 2011, Plaintiff filed a motion to
amend his Complaint pursuant to Fed.R.Civ.P. 15(a)(2).
D. Plaintiff's Cross–Motion to Amend
Generally, in support of his cross-motion to amend his
Complaint, Plaintiff attaches an affidavit in which he asserts
as follows: (1) he wishes to add as Defendants to this
action New York State Department of Correctional Services
Commissioner Brian Fischer, New York State Department
of Correctional Services Grievance Director Karen Bellamy,
Upstate Correctional Facility Superintendent David Rock,
and Upstate Correctional Facility Correctional Lieutenant
Lumbard; (2) his claims against those four new Defendants
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are timely because they relate back to the date of his
original Complaint pursuant to Fed.R.Civ.P. 15(c); and (3)
“the grievance involving this claim ... is not attached but is a
part of the record [and] is an essential factor of the Amended
Complaint.” (Dkt. No. 45.) In addition, he attaches a signed
copy of his proposed Amended Complaint. (Dkt. No. 45 &
Attach. 1.)
II. APPLICABLE LEGAL STANDARDS
A. Standard of Review
When specific objections are made to a magistrate judge's
report-recommendation, the Court makes a “de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b) (1)(C). 3 When only
general objections are made to a magistrate judge's report-
recommendation, or where the objecting party merely
reiterates the same arguments made in its original papers
submitted to the magistrate judge, the Court reviews the
report-recommendation for clear error or manifest injustice.
See Brown v. Peters, 95–CV–1641, 1997 WL 599355,
at *2–3 (N.D.N.Y. Sept.22, 1997) (Pooler, J.) [collecting
cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999). 4
Similarly, when a party makes no objection to a portion
of a report-recommendation, the Court reviews that portion
for clear error or manifest injustice. See Batista v. Walker,
94–CV–2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P.
72(b), Advisory Committee Notes: 1983 Addition [citations
omitted]. After conducing the appropriate review, the Court
may “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
3 On de novo review, “[t]he judge may ... receive
further evidence....” 28 U.S.C. § 636(b)(1)(C).
However, a district court will ordinarily refuse to
consider evidentiary material that could have been,
but was not, presented to the Magistrate Judge in
the first instance. See, e.g., Paddington Partners
v. Bouchard, 34 F.3d 1132, 1137–38 (2d Cir.1994)
(“In objecting to a magistrate's report before the
district court, a party has no right to present
further testimony when it offers no justification for
not offering the testimony at the hearing before
the magistrate.”) [internal quotation marks and
citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n. 3 (2d
Cir.1990) (district court did not abuse its discretion
in denying plaintiff's request to present additional
testimony where plaintiff “offered no justification
for not offering the testimony at the hearing before
the magistrate”).
4 See also Camardo v. Gen. Motors Hourly–
Rate Emp. Pension Plan, 806 F.Supp. 380,
382 (W.D.N.Y.1992) (explaining that court need
not consider objections that merely constitute a
“rehashing” of the same arguments and positions
taken in original papers submitted to the magistrate
judge); accord, Praileau v. Cnty. of Schenectady,
09–CV–0924, 2010 WL 3761902, at *1, n. 1
(N.D.N.Y. Sept.20, 2010) (McAvoy, J.); Hickman
ex rel. M.A.H. v. Astrue, 07–CV–1077, 2010 WL
2985968, at *3 & n. 3 (N.D.N.Y. July 27, 2010)
(Mordue, C.J.); Almonte v. N.Y.S. Div. of Parole,
04–CV–0484, 2006 WL 149049, at *4 (N.D.N.Y.
Jan.18, 2006) (Sharpe, J.).
B. Legal Standard Governing a Motion to Dismiss for
Failure to State a Claim
*5 It has long been understood that a dismissal for failure
to state a claim upon which relief can be granted, pursuant
to Fed.R.Civ.P. 12(b)(6), can be based on one or both of two
grounds: (1) a challenge to the “sufficiency of the pleading”
under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cnty., 549
F.Supp.2d 204, 211, nn. 15–16 (N.D.N.Y.2008) (McAvoy, J.,
adopting Report–Recommendation on de novo review).
Because such dismissals are often based on the first ground,
a few words regarding that ground are appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” F ed.
R. Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show [ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed.R.Civ.P. 8(a)(2).
On the one hand, the Supreme Court has long characterized
the “short and plain” pleading standard under Fed.R.Civ.P.
8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.Supp.2d
at 212, n. 20 (citing Supreme Court case). On the other
hand, the Supreme Court has held that, by requiring the
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above-described “showing,” the pleading standard under
Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a
statement that “give[s] the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests.”
Jackson, 549 F.Supp.2d at 212, n .17 (citing Supreme Court
cases) (emphasis added).
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F.Supp.2d
at 212, n. 18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F.Supp.2d 203, 213 & n. 32 (N.D.N.Y.2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason, as
one commentator has correctly observed, the “liberal” notice
pleading standard “has its limits.” 2 Moore's Federal Practice
§ 12.34[1][b] at 12–61 (3d ed.2003). For example, numerous
Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading
standard. Rusyniak, 629 F. Supp .2d at 213, n. 22 (citing
Supreme Court and Second Circuit cases); see also Ashcroft
v. Iqbal, ––– U.S. ––––, –––– – ––––, 129 S.Ct. 1937, 1949–
52, 173 L.Ed.2d 868 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme
Court reversed an appellate decision holding that a complaint
had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007). In doing so, the Court “retire[d]”
the famous statement by the Court in Conley v. Gibson, 355
U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that “a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.” Twombly, 127 S.Ct. at 1968–69. Rather than
turn on the conceivability of an actionable claim, the Court
clarified, the “fair notice” standard turns on the plausibility
of an actionable claim. Id. at 1965–74. The Court explained
that, while this does not mean that a pleading need “set out
in detail the facts upon which [the claim is based],” it does
mean that the pleading must contain at least “some factual
allegation[s].” Id . at 1965. More specifically, the “[f]actual
allegations must be enough to raise a right to relief above the
speculative level [to a plausible level],” assuming (of course)
that all the allegations in the complaint are true. Id.
*6 As for the nature of what is “plausible,” the Supreme
Court explained that “[a] claim has facial plausibility when
the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, –––
U.S. ––––, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009). “[D]etermining whether a complaint states a plausible
claim for relief ... [is] a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.... [W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not show[n]-
that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950
[internal quotation marks and citations omitted]. However,
while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does
not impose a probability requirement.” Twombly, 550 U.S. at
556.
Because of this requirement of factual allegations plausibly
suggesting an entitlement to relief, “the tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by merely
conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at
1949. Similarly, a pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Iqbal,
129 S.Ct. at 1949 (internal citations and alterations omitted).
Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (citations omitted).
This pleading standard applies even to pro se litigants. While
the special leniency afforded to pro se civil rights litigants
somewhat loosens the procedural rules governing the form
of pleadings (as the Second Circuit has observed), it does
not completely relieve a pro se plaintiff of the duty to satisfy
the pleading standards set forth in Fed.R.Civ.P. 8, 10 and
12. 5 Rather, as both the Supreme Court and Second Circuit
have repeatedly recognized, the requirements set forth in
Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even pro se
civil rights plaintiffs must follow. 6 Stated more simply, when
a plaintiff is proceeding pro se, “all normal rules of pleading
are not absolutely suspended.” Jackson, 549 F.Supp.2d at 214,
n. 28 [citations omitted]. 7
5 See Vega v. Artus, 610 F.Supp.2d 185, 196 & nn.
8–9 (N.D.N.Y.2009) (Suddaby, J.) (citing Second
Circuit cases); Rusyniak, 629 F.Supp.2d at 214 &
n. 34 (citing Second Circuit cases).
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6 See Vega, 610 F.Supp.2d at 196, n. 10 (citing
Supreme Court and Second Circuit cases);
Rusyniak, 629 F.Supp.2d at 214 & n. 34 (citing
Second Circuit cases).
7 It should be emphasized that Fed.R.Civ.P. 8's
plausibility standard, explained in Twombly, was
in no way retracted or diminished by the Supreme
Court's decision (two weeks later) in Erickson
v. Pardus, in which (when reviewing a pro se
pleading) the Court stated, “Specific facts are not
necessary” to successfully state a claim under
Fed.R.Civ.P. 8(a)(2). Erickson v. Pardus, 551 U.S.
89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081
(2007) [emphasis added]. That statement was
merely an abbreviation of the often-repeated point
of law—first offered in Conley and repeated in
Twombly—that a pleading need not “set out in
detail the facts upon which [the claim is based]”
in order to successfully state a claim. Twombly,
127 S.Ct. 1965, n. 3 (citing Conley, 355 U.S. at
47) [emphasis added]. That statement did not mean
that all pleadings may achieve the requirement
of “fair notice” without ever alleging any facts
whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or
in a generalized fashion) to raise a right to relief
above the speculative level to a plausible level. See
Rusyniak, 629 F.Supp.2d at 214 & n. 35 (explaining
holding in Erickson ).
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to state
a claim is contemplated. Generally, when contemplating a
dismissal pursuant to Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P.
12(c), the following matters outside the four corners of
the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint
(and are provided by the parties), or (4) any matter of which
the court can take judicial notice for the factual background
of the case. 8 Moreover, in the Second Circuit, a pro se
plaintiff's papers in response to a defendant's motion to
dismiss for failure to state a claim may be considered as
effectively amending the allegations of his complaint—to the
extent those papers are consistent with the allegations in the
complaint. 9
8 See Fed.R.Civ.P. 10(c) (“A copy of any written
instrument which is an exhibit to a pleading
is a part thereof for all purposes.”); Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d
Cir.2009) (“The complaint is deemed to include
any written instrument attached to it as an exhibit
or any statements or documents incorporated in
it by reference.”) (internal quotation marks and
citations omitted); Int'l Audiotext Network, Inc.
v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir.1995) (per curiam) (“[W]hen a plaintiff chooses
not to attach to the complaint or incorporate
by reference a [document] upon which it solely
relies and which is integral to the complaint,” the
court may nevertheless take the document into
consideration in deciding [a] defendant's motion
to dismiss, without converting the proceeding to
one for summary judgment.”) (internal quotation
marks and citation omitted); L–7 Designs, Inc. v.
Old Navy, LLC, No. 10–573, 2011 WL 2135734,
at *1 (2d Cir. June 1, 2011) (explaining that
conversion from a motion to dismiss for failure to
state a claim to a motion for summary judgment
is not necessary under Fed.R.Civ.P. 12[d] if
the “matters outside the pleadings” in consist
of [1] documents attached to the complaint or
answer, [2] documents incorporated by reference
in the complaint (and provided by the parties),
[3] documents that, although not incorporated by
reference, are “integral” to the complaint, or [4] any
matter of which the court can take judicial notice
for the factual background of the case).
9 See Drake v. Delta Air Lines, Inc., 147 F.3d
169, 170 n. 1 (2d Cir.1998) (per curiam) (“[W]e
deem Drake's complaint to include the facts
contained in his memorandum of law filed in
response to Delta's 1996 motion to dismiss.”);
Gill v. Mooney, 824 F.2d 192, 195 (2d Cir.1987)
( “In his affidavit submitted in opposition to
defendants' motion to dismiss, Gill asserts that
Mooney's actions amounted to deliberate and
willful indifference. Liberally construed under pro
se pleading standards, Gill's allegations against
Mooney involve more than ordinary lack of due
care for the prisoner's interests or safety, ... and
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therefore state a colorable claim under the Eighth
and Fourteenth Amendments.”) (internal quotation
marks and citation omitted); Donhauser v.Goord,
314 F.Supp.2d 119, 212 (N.D.N.Y.) (Sharpe, M.J.)
(“[I]n cases where a pro se plaintiff is faced with
a motion to dismiss, it is appropriate for the court
to consider materials outside of the complaint to
the extent they “are consistent with the allegations
in the complaint.”) (collecting district court cases),
vacated on other grounds, 317 F.Supp.2d 160
(N.D.N.Y.2004) (Hurd, J.).
C. Legal Standard Governing a Motion to Amend a
Complaint
*7 Rule 15(a) (2) of the Federal Rules of Civil Procedure
provides that “[t]he court should freely give leave [to] amend
when justice so requires.” Fed. R. Civ. Proc. 15(a)(2); Foman
v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d
222 (1962); Manson v. Stacescu, 11 F.3rd 1127, 1133 (2d
Cir.1993). Elaborating on this standard, the Supreme Court
has explained:
In the absence of any apparent or
declared reason—such as undue delay,
bad faith or dilatory motive on the
part of the movant, repeated failure
to cure deficiencies by amendments
previously allowed, undue prejudice
to the opposing party by virtue of
allowance of the amendment, futility
of amendment, etc.—the leave sought
should ... be ‘freely given.’
Foman, 371 U.S. at 182, accord, Milanese v. Rust–Oleum
Corp., 244 F.3d 104, 110 (2d Cir.2001) (“[Leave to amend]
should not be denied unless there is evidence of undue delay,
bad faith, undue prejudice to the non-movant, or futility.”).
For example, with regard to the “undue delay” factor, the
Second Circuit has held that “despite the lenient standard of
Rule 15(a), a district court does not abuse its discretion in
denying leave to amend the pleadings after the deadline set
in the scheduling order where the moving party has failed to
establish good cause.” Parker v. Columbia Pictures Indus.,
204 F.3d 326, 340 (2d Cir.2000).
In addition, with regard to the “undue prejudice” factor, while
as a general rule permission to amend a complaint should
be freely given, “ ‘the trial court [is] required to take into
account any prejudice’ that might result to the party opposing
the amendment.” Ansam Assocs., Inc. v. Cola Petroleum, Ltd.,
760 F.2d 442, 446 (2d Cir.1985) (leave to amend denied
where new claim concerned different period of time and
different theory of recovery from original claim) (quoting
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.
321, 330–31 [1971] ). For example, in Ansam Associates, the
Second Circuit held that permitting Plaintiff to allege a “new
set of operative facts” would have been “especially prejudicial
[to the defendant] given the fact that discovery had already
been completed and [defendant] had already filed a motion
for summary judgment.” Ansam Associates, 760 F.2d at 446.
Finally, with regard to the “futility” factor, a court measures
futility under the same standard as a motion to dismiss under
Fed.R.Civ.P. 12(b)(6). Nettis v. Levitt, 241 F.2d 186, 194 n.
4 (2d Cir2001); Ricciuti v. New York City Transit Auth., 941
F.2d 119, 123 (2d Cir.1991).
III. ANALYSIS
A. Defendant's Motion to Dismiss
As an initial matter, neither party has filed an Objection to
Magistrate Judge Homer's Report–Recommendation. As a
result, the Court need review the Report–Recommendation
for only clear error. After carefully reviewing all of the papers
in this action, including Magistrate Judge Homer's Report–
Recommendation, the Court concludes that the Report–
Recommendation is correct in all respects. (Dkt. No. 44.)
Magistrate Judge Homer employed the proper standards,
accurately recited the facts, and reasonably applied the law
to those facts. (Id.) As a result, the Court adopts the Report–
Recommendation in its entirety for the reasons stated therein.
*8 The Court would add only three points. First,
Magistrate Judge Homer's thorough and correct Report–
Recommendation would survive even de novo review.
Second, the Court bases its conclusion that Plaintiff's
Complaint should be dismissed on the alternative ground that
the claims asserted in that Complaint fail to state a claim
upon which relief can be granted for the reasons stated in
the eight arguments asserted by Defendant in his original
memorandum of law. (Dkt. No. 12.)
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Third, the Court bases its conclusion that Plaintiff should
be required to file a new action rather than be permitted
to simply file an Amended Complaint in this action on the
following additional grounds: (1) Plaintiff will not be unfairly
prejudiced by the Court's current Decision and Order, because
the three-year limitations period governing his claims 10
(which appear to have arisen between June 27, 2010, and
November 24, 2010) 11 does not yet appear to have expired,
and because no reason exists to believe that Plaintiff's in
forma pauperis status has changed since it was granted on
September 8, 2010 (Dkt. No. 4); 12 and (2) if the Court were
to simply accept for filing the proposed Amended Complaint
that Plaintiff has submitted, the Court would actually be
prejudicing Plaintiff because the pleading deficiencies in that
Amended Complaint (described below in Part III.B. of this
Decision and Order) would cause the Court to dismiss this
entire action with prejudice.
10 “The applicable statute of limitations for § 1983
actions arising in New York requires claims to be
brought within three years .” Pinaud v. County
of Sufolk, 52 F.3d 1139, 1156 (2d Cir.1995); see
also Connolly v. McCall, 254 F.3d 36, 40–41
(2d Cir.2001) (“[Plaintiff's] federal constitutional
claims, brought pursuant to 42 U.S.C. § 1983,
are governed by New York's three-year statute
of limitations for personal injury actions ....”). A
claim arising under Section 1983 accrues “when the
plaintiff knows or has reason to know of the harm
that he seeks to redress.” Connolly v. McCall, 254
F.3d 36, 41 (2d Cir.2001) [internal quotation marks
omitted], accord, Pearl v. City of Long Beach, 296
F.3d 76, 80 (2d Cir.2002) [internal quotation marks
omitted].
11 (Compare Dkt. No. 1, Attach. 1 [attaching
grievance reflecting date of incident as June 27,
2010] with Dkt. No. 40 [attaching final decision on
grievance, dated November 24, 2010].)
12 The Court notes that it appears that Plaintiff has
acquired only one “strike” for purposes of 28
U.S.C. § 1915(g), as of the date of this decision.
See White v. Brettschneider, 10–CV–4957, Order
(E.D.N.Y. filed Dec. 23, 2010).
For all of these reasons, Defendant's motion to dismiss
is granted, and Plaintiff's Complaint is dismissed without
prejudice.
B. Plaintiff's Cross–Motion to Amend
As an initial matter, the Court denies Plaintiff's cross-motion
to amend on three procedural grounds. First, Plaintiff's cross-
motion is untimely in that it had to be filed with his opposition
to Defendant's motion. N.D.N.Y. L.R. 7.1(c). 13 Ignoring this
rule in this circumstance, and permitting Plaintiff to change
the landscape of his claims after Magistrate Judge Homer has
reviewed them, would frustrate the purpose of the Magistrate
Act . 14
13 The Court notes that, during the time in question,
a copy of the District's Local Rules of Practice
and Pro Se Handbook were on file at Plaintiff's
correctional facility. The Court notes also that
proceeding pro se does not excuse Plaintiff of
his obligation to comply with the procedural
requirements set forth in the Federal Rules of Civil
Procedure and the Local Rules of Practice for this
District. See McNeil v. U.S., 508 U.S. 106, 113,
113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“While
we have insisted that the pleadings prepared by
prisoners who do not have access to counsel be
liberally construed ... we have never suggested that
procedural rules in ordinary civil litigation should
be interpreted so as to excuse mistakes by those
who proceed without counsel.”); Mohasco Corp.
v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65
L.Ed.2d 532 (1980) (“[I]in the long run, experience
teaches that strict adherence to the procedural
requirements specified by the legislature is the
best guarantee of evenhanded administration of
the law [even when that strict adherence inures
to the detriment of a pro se litigant].”); Faretta
v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct.
2525, 45 L.Ed.2d 562 (1975) (“The right of self-
representation is not a license ... not to comply
with relevant rules of procedural and substantive
law.”); Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 477 (2d Cir.2006) (“[P]ro se status does
not exempt a party from compliance with relevant
rules of procedural and substantive law.”) [citation
omitted]; LoSacco v. City of Middletown, 71 F.3d
88, 92 (2d Cir.1995) (“Although pro se litigants
should be afforded latitude, ... they generally are
required to inform themselves regarding procedural
rules and to comply with them .... This is especially
true in civil litigation.”) [internal quotation marks
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and citations omitted]; Edwards v. I.N.S., 69
F.3d 5, 8 (2d Cir.1995) (“[W]hile a pro se
litigant's pleadings must be construed liberally, ...
pro se litigants generally are required to inform
themselves regarding procedural rules and to
comply with them.”) [citations omitted]; Traguth
v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) (“[T]he
right [to benefit from reasonable allowances as
a pro se litigant] does not exempt [the pro
se ] party from compliance with relevant rules
of procedural and substantive law.”) [internal
quotation marks and citations omitted]; Krug v.
Cnty. of Rennselaer, 559 F.Supp.2d 223, 234
(N.D.N.Y.2008) (McAvoy, J.) (noting that pro se
plaintiffs “must follow the procedural formalities
of Local Rules”); Carmona v. Wright, 233 F.R.D.
270, 275 (N.D.N.Y.2006) (Sharpe, J.) (“Pro se
litigants must comply with local rules, and the
failure to do so is sanctionable.”).
14 See also Murr v. U.S., 200 F.3d 895, 902,
n. 1 (6th Cir.2000) (“Petitioner's failure to
raise this claim before the magistrate constitutes
waiver.”); Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir.1996) (“Issues raised for the
first time in objections to the magistrate judge's
recommendations are deemed waived.”) [citations
omitted]; Cupit v. Whitley, 28 F.3d 532, 535 (5th
Cir.1994) (“By waiting until after the magistrate
judge had issued its findings and recommendations
[to raise its procedural default argument] ...
Respondent has waived procedural default ...
objection[ ].”) [citations omitted]; Greenhow v.
Sec ‘y of Health & Human Servs., 863 F.2d
633, 638–39 (9th Cir.1988) (“[A]llowing parties to
litigate fully their case before the magistrate and, if
unsuccessful, to change their strategy and present a
different theory to the district court would frustrate
the purpose of the Magistrates Act.”), overruled on
other grounds by U.S. v. Hardesty, 977 F.2d 1347
(9th Cir.1992); Patterson–Leitch Co. Inc. v. Mass.
Mun. Wholesale Elec. Co., 840 F.2d 985, 990–
91 (1st Cir.1988) (“[A]n unsuccessful party is not
entitled as of right to de novo review by the judge
of an argument never seasonably raised before
the magistrate.”) [citation omitted]; cf. Paddington
Partners v. Bouchard, 34 F.3d 1132, 1137–38 (2d
Cir.1994) (“In objecting to a magistrate's report
before the district court, a party has no right
to present further testimony when it offers no
justification for not offering the testimony at the
hearing before the magistrate.”) [internal quotation
marks and citations omitted]; Pan Am. World
Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36,
40 n. 3 (2d Cir.1990) (district court did not abuse its
discretion in denying plaintiff's request to present
additional testimony where plaintiff “offered no
justification for not offering the testimony at
the hearing before the magistrate”); Alexander v.
Evans, 88–CV–5309, 1993 WL 427409, at *18 n.
8 (S.D.N.Y. Sept.30, 1993) (declining to consider
affidavit of expert witness that was not before
magistrate) [citation omitted].
Second, Plaintiff's motion fails to “set forth specifically the
proposed amendments and identify the amendments in the
proposed pleading, either through the submission of a red-
lined version of the original pleading or other equivalent
means.” N.D.N.Y. L.R. 7.1(a)(3). Neither Defendant nor the
Court should be required, at its own peril (i.e., if it happens
to be mistaken), to compare Plaintiff's two pleadings on a
line-by-line basis, in an attempt to discern Plaintiff's proposed
amendments.
Third, in attempting to state a claim in his Amended
Complaint, Plaintiff appears to rely heavily on the
incorporation by reference of a document attached to only
his original Complaint, in violation of Local Rule 7.1(a)(3).
(Dkt. No. 45, at ¶ 5 [stating that “the grievance involving
this claim ... is not attached but is a part of the record [and]
is an essential factor of the Amended Complaint”].) See
also N.D.N.Y. L.R. 7.1(a)(3) (“A party shall not incorporate
any portion of its prior pleading into the proposed amended
pleading by reference.”). This proscription against piecemeal
pleadings is not just a formality, but is supported by several
practical justifications.
*9 In any event, even setting aside these three procedural
violations, the Court would deny Plaintiff's cross-motion
on five substantive grounds. First, Plaintiff has failed to
even attempt to show cause for his motion, for example,
by attempting to persuade the Court that his delay in filing
the motion was not “undue,” and that the prejudice to
Defendants caused by the granting of his motion would not
be “undue.” (Dkt. No. 45.)
Second, Plaintiff's proposed claims against Defendant Drake
in his Amended Complaint are more vague, and less factual,
than are his claims against Defendant Drake in his original
Complaint. 15 More important, Plaintiff's proposed claims
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against Defendant Drake in his Amended Complaint suffer
from most, if not all, of the pleading defects that plagued his
claims against Defendant Drake in his original Complaint,
which defects are accurately described by Defendants in their
original memorandum of law. (Dkt. No. 12.) For example,
Defendant's alleged false statements are not actionable, even
if they were (1) intended to annoy and harass Plaintiff
in violation of state law, 16 or (2) provided during the
grievance process. 17 In addition, Plaintiff has failed to state
a claim for excessive force because he has failed to allege
facts plausibly suggesting that (1) the amount of force used
against him was more than de minimis, 18 and (2) Defendant
Drake intended to injure him by kicking his cell door. 19
To the contrary, Plaintiff has alleged merely that Defendant
Drake kicked his cell door, “injuring [his] nose [and] right
jaw.” Moreover, Plaintiff's allegation that Defendant Drake's
conduct violated N.Y. Correction Law § 137(5), 20 would
not, even if plausible, elevate Defendant's conduct to a
constitutional level. 21
15 (Compare Dkt. No. 1, at ¶¶ 6, 7 [focusing
exclusively on conduct of Def. Drake] & Ex. 1 with
Dkt. No. 45, Attach. 1, at ¶¶ 6, 7 [focusing mainly
on conduct of five new proposed Defendants].)
16 See Robinson v. New York State Dept. of
Corr. Serv., 08–CV–0911, 2009 WL 3246818,
at * 16 (N.D.N.Y. Sept.30, 2009) (McAvoy, J.,
adopting Report–Recommendation by DiBianco,
M.J.) (“Even if defendants had violated New York
law or the DOCS Employee Manual prohibiting
verbal harassment, the violation of state law, absent
a constitutional violation, is not actionable under
section 1983.”).
17 See, e.g., Tafari v. McCarthy, 714 F.Supp.2d 317,
349 (N.D.N.Y.2010) (Hurd, J. adopting Report–
Recommendation by Lowe, M.J.) (noting that,
because inmates do not have a constitutional right
to grievance programs, “courts have consistently
held that violations of th[e grievance] procedures
or the state's failure to enforce them does not give
rise to a claim under”); cf. Boddie v. Schnieder, 105
F.3d 857, 862 (2d Cir.1997) (“A prison inmate has
no general constitutional right to be free from being
falsely accused in a misbehavior report.”).
18 See Hudson v. McMillian, 503 U.S. 1, 9–10,
112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (“The
Eighth Amendment's prohibition of ‘cruel and
unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of
physical force, provided that the use of force is not
of a sort repugnant to the conscience of mankind.”).
19 See, e.g., Rivera v. Goord, 119 F.Supp.2d 327, 341
(S.D.N.Y.2000) (noting that the subjective prong
of an excessive force claim requires the plaintiff to
allege “that the prison guards acted wantonly, with
the sadistic or malicious intent to harm him”).
20 N.Y. Correction Law § 137(5) (“No inmate in the
care or custody of the department shall be subjected
to degrading treatment, and no officer or other
employee of the department shall inflict any blows
whatever upon any inmate, unless in self defense,
or to suppress a revolt or insurrection....”).
21 See Doe v. Conn. Dept. of Child & Youth
Servs., 911 F.2d 868, 869 (2d Cir.1990) (“[A]
violation of state law neither gives [plaintiff] a
§ 1983 claim nor deprives defendants of the
defense of qualified immunity to a proper §
1983 claim.”); Patterson v. Coughlin, 761 F.2d
886, 891 (2d Cir.1985) (“[A] state employee's
failure to conform to state law does not in itself
violate the Constitution and is not alone actionable
under § 1983 ....”) [citation omitted]; Murray v.
Michael, 03–CV–1434, 2005 WL 2204985, at *10
(N.D.N.Y. Sept.7, 2005) (DiBianco, M.J.) (“[A]ny
violations of state regulations governing the
procedures for disciplinary hearings ... do not rise
to the level of constitutional violations.”) [citation
omitted]; Rivera v. Wohlrab, 232 F.Supp.2d 117,
123 (S.D.N.Y.2002) (“[V]iolations of state law
procedural requirements do not alone constitute
a deprivation of due process since ‘[f]ederal
constitutional standards rather than state law define
the requirements of procedural due process.’ ”)
[citing Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d
Cir.1990) ].
Third, to the extent Plaintiff has attempted to bring additional
claims against these four individuals (as opposed to simply
alleging the “special circumstances” that excused his failure
to exhaust his claim against Defendant Drake), 22 at the
very most, Plaintiff's proposed claims against Brian Fischer,
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Karen Bellamy, David Rock, and Lieutenant Lumbard allege
facts plausibly suggesting not criminal recklessness but mere
negligence, which is not actionable under 42 U.S.C. §
1983. 23
22 See Hemphill v. New York, 380 F.3d 680, 686
(2d Cir.2004) (finding that failure to exhaust
administrative remedies may be excused where [1]
administrative remedies were not in fact available,
[2] prison officials have forfeited, or are estopped
from raising, the affirmative defense of non-
exhaustion, or [3] “special circumstances ... justify
the prisoner's failure to comply with administrative
procedural requirements”).
23 See, e.g., Farmer v. Brennan, 511 U.S. 825,
827, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994) (“[S]ubjective recklessness as used in the
criminal law is a familiar and workable standard
that is consistent with the Cruel and Unusual
Punishments Clause as interpreted in our cases,
and we adopt it as the test for ‘deliberate
indifference’ under the Eighth Amendment....
[D]eliberate indifference [for purposes of an Eighth
Amendment claim] describes a state of mind
more blameworthy than negligence.”); Daniels v.
Williams, 474 U.S. 327, 331–33, 106 S.Ct. 662,
88 L.Ed.2d 662 (1986) (“[I]njuries inflicted by
governmental negligence are not addressed by the
United States Constitution.”); Pena v. Deprisco,
432 F.3d 98, 112 (2d Cir.2005) (“In order to
establish a violation of a right to substantive due
process, a plaintiff must demonstrate not only
government action but also that the government
action was ‘so egregious, so outrageous, that it
may fairly be said to shock the contemporary
conscience.’ ... [T]he Fourteenth Amendment is
not a ‘font of tort law.’ ... It does not provide
a comprehensive scheme for determining the
propriety of official conduct or render all official
misconduct actionable.... ‘[N]egligently inflicted
harm is categorically beneath the threshold of
constitutional due process.’ ”) [citations omitted];
Riddick v. Modeny, No. 07–1645, 2007 WL
2980186, at *2 (3d Cir. Oct.9, 2007) (“The
protections afforded prisoners by the Due Process
Clause of the Fourteenth Amendment are not
triggered by the mere negligence of prison
officials.”).
Fourth, Plaintiff's proposed Amended Complaint, which is
barely legible, 24 fails to allege facts plausibly suggesting
the personal involvement of supervisors Brian Fischer, Karen
Bellamy, and David Rock: Fisher and Rock are each the
subject of merely conclusory allegations by Plaintiff, and
Bellamy appears to be the subject of no allegations by
Plaintiff. (Dkt. No. 45, Attach.1, ¶¶ 6, 7.) Moreover, Plaintiff's
proposed Amended Complaint appears to fail to allege facts
plausibly suggesting the personal involvement of Lieutenant
Lumbard, whom he vaguely alleges committed “abusive
acts ... where allegations are of correctional officers['] official
misconduct.” (Id.)
24 See N.D.N.Y. L.R. 10(a),(b) (requiring, inter alia,
that pleadings be “double-spaced” and “legibly
written”).
*10 Fifth, and finally, Plaintiff's proposed Amended
Complaint appears to allege facts plausibly suggesting that he
did not exhaust (or even attempt to exhaust) his administrative
remedies with regard to his new claims—i.e., his claims
against Brian Fischer, Karen Bellamy, David Rock, and
Lieutenant Lumbard arising from their alleged failure to
preserve evidence and/or their rendering the administrative
grievance process unavailable to him (by failing to render
timely and correct administrative decisions on his original
grievance). (Dkt. No. 45, Attach.1, ¶¶ 4, 6, 7.) Simply stated,
to the extent Plaintiff has attempted to bring additional claims
against these four individuals (as opposed to simply alleging
the “special circumstances” that excused his failure to exhaust
his claim against Defendant Drake), Plaintiff appears to have
confused his exhaustion of his administrative remedies on his
original grievance with his exhaustion of his administrative
remedies with his new claims.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Homer's Report–
Recommendation (Dkt. No. 44) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendant's motion to dismiss (Dkt. No.
12) is GRANTED and Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED without prejudice; and it is further
ORDERED that Plaintiff's cross-motion to amend his
Complaint (Dkt. No. 45) is DENIED.
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All Citations
Not Reported in F.Supp.2d, 2011 WL 4478921
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White v. Drake
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:10cv01034
WHITE v. DRAKE
— N.D.N.Y. Aug. 26, 2010 Docket
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White v. Drake
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History (2)
Direct History (2)
1. White v. Drake
2011 WL 4478988 , N.D.N.Y. , Aug. 11, 2011
Report and Recommendation Adopted by
2. White v. Drake
2011 WL 4478921 , N.D.N.Y. , Sep. 26, 2011
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Simpson v. Price, Not Reported in Fed. Supp. (2021)
2021 WL 7367083
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2021 WL 7367083
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James SIMPSON, Plaintiff,
v.
R. PRICE, Defendant.
9:19-CV-1413 (MAD/ATB)
|
Signed 12/29/2021
Attorneys and Law Firms
JAMES SIMPSON, Plaintiff, pro se.
KONSTANDINOS D. LERIS, Asst. Attorney General for
Defendant.
REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 This matter has been referred to me for Report and
Recommendation, by the Honorable Mae A. D'Agostino,
United States District Judge, pursuant to 28 U.S.C. § 636(b)
and Local Rules N.D.N.Y. 72.3(c). Plaintiff brought this civil
rights action asserting various allegations of constitutional
violations that occurred while he was incarcerated at Cayuga
Correctional Facility (“Cayuga C.F.”), in the custody of the
New York State Department of Corrections and Community
Supervision (“DOCCS”).
Plaintiff filed his original complaint on November 15, 2019.
(Dkt. No. 1). By decision and order dated January 3, 2020,
Judge D'Agostino dismissed plaintiff's complaint for failure
to state a claim pursuant to 28 U.S.C. §§ 1915, 1915A. (Dkt.
No. 4). In the same order, Judge D'Agostino granted plaintiff
leave to file an amended complaint in order to cure some
of the defects identified by the court. (Id.). Plaintiff filed
an amended complaint on January 21, 2020. (Dkt. No. 5).
On March 17, 2020, Judge D'Agostino accepted plaintiff's
amended complaint for filing, only to the extent it asserted
an Eighth Amendment excessive force claim against C.O.
Price. (Dkt. No. 8). On August 27, 2020, plaintiff filed a
motion seeking leave to amend. (Dkt. No. 25). By decision
and order dated September 24, 2020, Judge D'Agostino
granted plaintiff's motion, in part, and accepted the second
amended complaint for filing to the extent it asserted an
Eighth Amendment excessive force claim against C.O. Price
arising from events that occurred on October 10, 2018. (Dkt.
No. 29).
There is some confusion as to what specific claims of Eighth
Amendment excessive force survived initial review by the
district court. 1 For purposes of this report-recommendation,
the court recognizes the surviving claims in plaintiff's second
amended complaint to include (1) an Eighth Amendment
excessive force claim against C.O. Price stemming from
the events that occurred on October 10, 2018, and (2) an
Eighth Amendment excessive force claim against C.O. Price
stemming from the events that occurred on August 9, 2019.
1 Upon initial review of plaintiff's amended
complaint, the district court acknowledged that
the pleading was “not a model of clarity,” but
nevertheless liberally construed it to allege, among
other things, an Eighth Amendment excessive
force claim against C.O. Price arising out of
allegations that C.O. Price tried to place plaintiff
in leg shackles that were too small for him
on August 9, 2019. (Dkt. No. 8 at 5). In
the amended complaint, plaintiff also alleged
various constitutional violations stemming from
events which took place in October 2018. (See
generally Dkt. No. 5). These claims did not
survive initial review. (See Dkt. No. 8 at 2–8).
Plaintiff subsequently filed his second amended
complaint, which suffered from deficiencies
similar to his former pleading. (Dkt. No. 30).
Upon review, the district court construed the
second amended complaint to allege an Eighth
Amendment excessive force claim against C.O.
Price concerning the October 2018 events. (Dkt.
No. 29). The district court did not consider whether
plaintiff properly raised allegations of excessive
force against C.O. Price concerning events which
took place on August 9, 2019, presumably
because the second amended complaint did not
specifically identify this time period. However, at
his deposition plaintiff explained that his claims
against C.O. Price, as set forth in his second
amended complaint, stemmed from the events
which took place on August 9, 2019. (Plaintiff's
Deposition Transcript (“Pl.’s Dep.”) at 37, 46–
47, 69). Considering plaintiff's testimony, this
court interprets the portion of the second amended
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complaint entitled “Statement of Claim” to address
the excessive force claim against C.O. Price that
took place on August 9, 2019, although plaintiff
has admittedly characterized this claim as one
of medical deliberate indifference, as opposed to
excessive force. (Dkt. No. 30 at 2–3). At the request
of the moving defendant and for the sake of judicial
economy, this court will assess whether the latter
excessive force claim against C.O. Price survives
summary judgment, assuming it was properly
pleaded in the first place.
*2 Presently before the court is defendant C.O. Price's
motion for summary judgment pursuant to Fed. R. Civ. P.
56, seeking dismissal of the action. (Dkt. No. 41). Plaintiff
responded in opposition to the motion on September 9, 2021.
(Dkt. No. 43). Defendant filed a reply brief on September
16, 2021. (Dkt. No. 44). For the reasons set forth below, the
court recommends granting defendant C.O. Price's motion
for summary judgment and dismissing the second amended
complaint in its entirety.
I. Summary Judgment
Summary judgment is appropriate where there exists no
genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263,
272–73 (2d Cir. 2006). “Only disputes over [“material”] facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must
be apparent that no rational finder of fact could find in favor
of the non-moving party for a court to grant a motion for
summary judgment. Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
The moving party has the burden to show the absence of
disputed material facts by informing the court of portions
of pleadings, depositions, and affidavits which support the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party satisfies its burden, the nonmoving party
must move forward with specific facts showing that there is
a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at
273. In that context, the nonmoving party must do more than
“simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, in
determining whether there is a genuine issue of material fact,
a court must resolve all ambiguities, and draw all inferences,
against the movant. See United States v. Diebold, Inc., 369
U.S. 654, 655 (1962); Salahuddin, 467 F.3d at 272.
Local Rules of the Northern District of New York require
that a motion for summary judgment be accompanied by a
statement of material facts which sets forth, in numbered
paragraphs, “a short and concise statement of each material
fact about which the moving party contends there exists no
genuine issue.” Local Rule 56.1(a). 2 The same rule requires
the opposing party to file a response to the moving party's
statement of material facts, which admits or denies each of
the moving party's factual assertions in matching numbered
paragraphs, and supports any denials with a specific citation
to the record where the factual issues arise. Local Rule
56.1(b). The rule specifically provides that “[t]he Court may
deem admitted any properly supported facts set forth in the
Statement of Material Facts that the opposing party does not
specifically controvert.” Id.
2 Previously Local Rule 7.1(a)(3).
Credibility assessments and the choice between conflicting
versions of a story are generally for a jury to resolve. Rule v.
Brine, Inc. 85 F.3d 1002, 1011 (2d Cir. 1996). However, the
Second Circuit recognized an exception to this rule in Jeffreys
v. City of New York, 426 F.3d 549 (2d Cir. 2005). In Jeffreys,
the court held that summary judgment may be granted in the
rare case, “where there is nothing in the record to support the
plaintiff's allegations, aside from his own contradictory and
incomplete testimony, and even after drawing all inferences in
the light most favorable to the plaintiff, the court determines
that ‘no reasonable person’ could credit ... his testimony.”
Quick v. Quinn, No. 9:12-CV-1529 (DNH/DEP), 2014 WL
4627106, at *4 (N.D.N.Y. Sept. 11, 2014) (quoting Jeffreys,
426 F.3d at 54-55). In order for the court to apply the
Jeffreys exception, the defendant must satisfy each of the
following: (1) “the plaintiff must rely ‘almost exclusively
on his own testimony,’ ” (2) the plaintiff's “testimony must
be ‘contradictory or incomplete,’ ” and (3) the plaintiff's
testimony must be contradicted by evidence produced by
the defense. Id. (quoting Benitez v. Ham, No. 04-CV-1159
(NAM/GHL), 2009 WL 3486379, at *20-21 (N.D.N.Y. Oct.
21, 2009) (adopting report and recommendation) (quoting
Jeffreys, 426 F.3d at 554)).
II. Factual Contentions
A. October 10, 2018
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*3 Plaintiff alleges that on October 10, 2018, he was
advised that he had a medical appointment outside Cayuga
C.F. (Second Amended Complaint (“SAC”) at 2) (Dkt. No.
30). He informed the correctional officers responsible for
his transport that “the leg irons they intended to use were
to[o] small for [plaintiff's] ankles.” Id. The officers ignored
plaintiff and proceeded to place him in the small leg irons. Id.
Fourteen hours later, plaintiff's ankles were severely bruised,
“and [his] right ankle had an open wound where the shackle
had grounded through [his skin].” Id. Approximately a week
later, a nurse informed plaintiff that the injury had become
a “sever[e] infection necessitating daily attention by medical
staff and antibiotics.” Id.
B. August 9, 2019
Plaintiff was scheduled to attend a medical appointment
at SUNY Upstate Medical University (“SUNY Upstate”)
on August 9, 2019. (Pl.’s Dep. at 47; Declaration of
Richard Price (“Price Decl.”) ¶ 10). C.O. Price was the
officer responsible for escorting plaintiff to his medical
appointment that morning. (Pl.’s Dep. at 49; Price Decl. ¶ 10).
Accordingly, C.O. Price contacted plaintiff's dorm by phone
at approximately 7:30 a.m., requesting that plaintiff arrive to
the draft area by 8:15 a.m. in order to be strip frisked and to
otherwise prepare for transport. (Price Decl. ¶ 12). Plaintiff
was late, however, and did not arrive to the draft room until
8:45 a.m. (Pl.’s Dep. at 48–49, Price Decl. ¶ 13).
The parties’ contentions diverge at this point. According to
the plaintiff, when he got to the draft room C.O. Price was
“screaming” at him for being late. (Pl.’s Dep. at 51). Plaintiff
was subsequently strip frisked, without incident, per facility
protocol. (Id. at 51–52, 55). After the strip frisk, plaintiff was
under the assumption that he was going to be taken to the
medical unit to have his ankle wrapped. (Id. at 52). Of note,
plaintiff testified that he suffers from a medical condition
that causes “abbreviations” and “deep imprints” in his skin
when compression is applied. (Id. at 32–33). Plaintiff also
asserted that, due to this medical condition, he had a permit for
“big boy” cuffs to be used on his ankles. (Id. at 43). Plaintiff
testified that C.O. Price knew plaintiff required larger ankle
cuffs. (Id. At 56).
Nevertheless, after the strip frisk C.O. Price told plaintiff, “we
don't have time for you to go over there to medical to get
your leg wrapped.” (Id. at 52). C.O. Price then put plaintiff
in the transport van, and tried to put standard size cuffs on
plaintiff's ankles. (Id. at 52–53). Plaintiff told C.O. Price he
would not wear the smaller cuffs. (Id. at 53). When C.O.
Price tried forcing the cuffs onto plaintiff's ankles, plaintiff
put his cane in front of his legs. (Id.). C.O. Price told plaintiff
that he was going to “tell ... people that [plaintiff] tried to
hit [him] with a cane” if plaintiff didn't allow himself to be
placed in the smaller cuffs. (Id.). Plaintiff continued to refuse.
(Id.). C.O. Price made another attempt to place the cuffs on
plaintiff's ankles, which caused a “scab” from an old wound
to “pop[ ] back open” on plaintiff's leg. (Id. at 53, 58–59).
Plaintiff testified that C.O. Price had “no choice” then but to
let plaintiff out of the van and take him to the medical unit to
get his leg wrapped. (Id. at 53).
After plaintiff's leg was wrapped, C.O. Price attempted once
more to put the smaller cuffs on plaintiff, and threatened to
take plaintiff to “the box” if he did not cooperate. (Id. at
54). Plaintiff refused, and ultimately C.O. Price got bigger
cuffs (however, apparently not the “big boy” cuffs) and placed
them onto plaintiff's ankles. (Id.). Plaintiff was transferred
to SUNY Upstate, and upon his return C.O. Price took him
“straight to the box.” (Id.).
*4 C.O. Price has submitted a declaration in support of his
pending motion for summary judgement, which alternatively
describes the events of August 9 th . Upon plaintiff's arrival
to the draft room that morning, C.O. Price maintains that
he conducted a strip frisk of plaintiff, and then placed
plaintiff in mechanical wrist restraints. (Id. ¶ 14). Plaintiff
was subsequently escorted to the facility van, where C.O.
Price attempted to place standard size ankle restraints on him.
(Id. ¶¶ 14–15). Plaintiff refused and “shoved” his cane at
C.O. Price, “almost striking [C.O. Price] in the nose.” (Id.
¶ 15). Plaintiff proceeded to place his cane between his
ankles. (Id.). The cane was taken from plaintiff and C.O. Price
gave plaintiff several direct orders to allow him to apply the
restraints, however plaintiff refused to comply. (Id. ¶ 16). C.O.
Price did not threaten to take plaintiff to the Special Housing
Unit (“SHU”), nor did he threaten him in any other manner.
(Id.).
Plaintiff eventually told C.O. Price that he had a permit for
“big boy” cuffs on file with Cayuga C.F. medical staff. (Id.
¶ 17). C.O. Price maintains that he had no knowledge of
plaintiff's purported permit at the time, and had escorted
plaintiff on previous medical trips where standard size leg
restraints were used. (Id. ¶¶ 18–20). Nevertheless, C.O. Price
stopped attempting to place the ankle restraints on plaintiff
and contacted the area supervisor. (Id. ¶ 21). They escorted
plaintiff from the van to the medical unit, where a nurse
placed a gauze bandage around one of plaintiff's ankles. (Id.
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¶ 22). 3 At the same time, C.O. Price looked for but could
not find documentation of plaintiff's purported medical permit
for larger ankle restraints, thus a determination was made
to use the standard size restraints on plaintiff. (Id. ¶ 24).
Plaintiff eventually allowed C.O. Price to place his ankles
in the standard size leg restraints, and they departed for
SUNY Upstate. (Id. ¶¶ 25–26). The remainder of the trip
went without incident. When they returned, C.O. Price issued
plaintiff a misbehavior report charging him with interference
with an employee, lying/providing false information, and
refusing a direct order. (Id. ¶ 28, Ex. B). C.O. Price avers that
plaintiff was not injured, nor did he complain of being injured,
at any time on August 9, 2019. (Id. ¶ 32).
3 C.O. Price denies that plaintiff was taken to medical
because of an injury caused by him. (Id. ¶ 23).
DISCUSSION
III. October 10, 2018 Excessive Force Claim
“It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation
marks and citations omitted); Black v. Coughlin, 76 F.3d 72,
74 (2d Cir. 1996). The district court interpreted plaintiff's
second amended complaint to assert that C.O. Price was
one of the officers who escorted plaintiff to his medical
appointment. (See Dkt. No. 29 at 3). However, at his
deposition plaintiff testified to the contrary, confirming that
C.O. Price was not involved in the October 10, 2018 incident.
(Pl.’s Dep. at 37). Thus, it is undisputed that C.O. Price was
not present, or otherwise involved, in the events surrounding
plaintiff's allegations of excessive force on October 10,
2018. 4 (See Pl.’s Dep. at 37; Price Decl. ¶¶ 5–6, Ex. A).
Accordingly, the court recommends that the second amended
complaint be dismissed against C.O. Price as it relates to this
claim.
4 In his opposition papers, plaintiff appears to argue
that this claim should not be dismissed against
C.O. Price. (Plaintiff's Brief (“Pl.’s Br.”) at 3–
5). Plaintiff's argument is misplaced, however, as
it only addresses the events which unfolded on
August 9, 2019, and why C.O. Price should be held
liable for his actions on that day. (Id.).
IV. August 9, 2019 Excessive Force Claim
A. Exhaustion of Administrative Remedies
1. Legal Standards
*5 The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C.
§ 1997e(a), requires an inmate to exhaust all available
administrative remedies prior to bringing a federal civil rights
action. The exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and regardless of the subject matter
of the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d
Cir. 2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)).
Inmates must exhaust their administrative remedies even if
they are seeking only money damages that are not available
in prison administrative proceedings. Id. at 675.
The failure to exhaust is an affirmative defense that must
be raised by the defendants. Jones v. Bock, 549 U.S. 199,
216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d
Cir. 2004). As an affirmative defense, it is the defendants’
burden to establish that plaintiff failed to meet the exhaustion
requirements. See, e.g., Key v. Toussaint, 660 F. Supp. 2d 518,
523 (S.D.N.Y. 2009) (citations omitted).
The Supreme Court has held that in order to properly
exhaust an inmate's administrative remedies, the inmate must
complete the administrative review process in accordance
with the applicable state rules. Jones, 549 U.S. at 218-19
(citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford,
the Court held that “proper” exhaustion means that the
inmate must complete the administrative review process in
accordance with the applicable procedural rules, including
deadlines, as a prerequisite to bringing suit in federal court.
548 U.S. at 90-103.
The grievance procedure in New York is a three-tiered
process. The inmate must first file a grievance with the Inmate
Grievance Resolution Committee (“IGRC”). N.Y. Comp.
Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse
decision of the IGRC may be appealed to the Superintendent
of the Facility. Id. § 701.5(c). Adverse decisions at the
Superintendent's level may be appealed to the Central Office
Review Committee (“CORC”). Id. § 701.5(d). The court also
notes that the regulations governing the Inmate Grievance
Program encourage the inmate to “resolve his/her complaints
through the guidance and counseling unit, the program area
directly affected, or other existing channels (informal or
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formal) prior to submitting a grievance.” Id. § 701.3(a)
(Inmate's Responsibility). There is also a special section for
complaints of harassment. Id. § 701.8.
Until recently, the Second Circuit utilized a three-part inquiry
to determine whether an inmate had properly exhausted his
administrative remedies. See Brownell v. Krom, 446 F.3d 305,
311-12 (2d Cir. 2006) (citing Hemphill v. State of New York,
380 F.3d 680, 686 (2d Cir. 2004)). The Hemphill inquiry
asked (1) whether the administrative remedies were available
to the inmate; (2) whether defendants’ own actions inhibiting
exhaustion estops them from raising the defense; and (3)
whether “special circumstances” justify the inmate's failure to
comply with the exhaustion requirement. Id.
However, the Supreme Court has now made clear that courts
may not excuse a prisoner's failure to exhaust because of
“special circumstances.” Ross v. Blake, 578 U.S. 632, 136
S. Ct. 1850, 1857 (June 6, 2016). “ ‘[M]andatory exhaustion
statutes like the PLRA establish mandatory exhaustion
regimes, foreclosing judicial discretion.’ ” Riles v. Buchanan,
656 F. App'x 577, 580 (2d Cir. Sept. 1, 2016) (quoting Ross,
578 U.S. at ––––, 136 S. Ct. at 1857). Although Ross did
away with the “special circumstances” exception, the other
two factors in Hemphill – availability and estoppel – are
still relevant. The court in Ross referred to “availability”
as a “textual exception” to mandatory exhaustion, and
“estoppel” has become one of the three factors in determining
availability. Ross, 578 U.S. at ––––, 136 S. Ct. at 1858.
Courts evaluating whether an inmate has exhausted his or
her administrative remedies must focus on whether those
remedies were “available” to the inmate. Id.; see also
Riles, 656 F. App'x at 580. An administrative procedure is
“unavailable” when
*6 (1) “it operates as a simple dead end – with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates; (2) it is “so opaque that is [sic] becomes,
practically speaking, incapable of use”; or (3) “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation,
or intimidation.”
Ross, 578 U.S. at ––––, 136 S. Ct. at 1859-60.
In Ross, the Supreme Court gave examples of the
circumstances under which each of the above would apply. Id.
The first circumstance listed above involves a case in which
the relevant “administrative procedure” lacks the authority to
provide “any” relief. Id. at 1859. The second example is when
the administrative procedure “exists,” but is so complicated or
“opaque” that no ordinary prisoner could “discern or navigate
it.” Id. Finally, administrative remedies are not available if
prison administrators prevent inmates from taking advantage
of the grievance process by misleading or threatening them,
preventing their use of the administrative procedure. Id. at
1860.
2. Application
C.O. Price argues that plaintiff's excessive force claim
stemming from the events that occurred on August 9, 2019
is subject to dismissal due to plaintiff's failure to exhaust
his administrative remedies. Specifically, C.O. Price contends
that plaintiff did not file an initial grievance prior to bringing
suit, nor did he appeal the denial of any grievance concerning
this claim to CORC. (Defendant's Memorandum of Law at
14). In support of his position, C.O. Price has attached to
his motion papers the sworn declarations of Rachael Seguin,
the Assistant Director of the Incarcerated Grievance Program
(“IGP”) for DOCCS, and Morgan Swan, the Incarcerated
Grievance Program Supervisor at Cayuga C.F. (See generally
Declaration of Rachael Seguin (“Seguin Decl.”); Declaration
of Morgan Swan (“Swan Decl.”)) (Dkt. Nos. 41-3; 41-4).
These declarations, and the evidence attached as exhibits
thereto, provide compelling evidence that plaintiff neither
filed an initial grievance, nor appealed to CORC, concerning
his claim of excessive force by C.O. Price occurring on
August 9, 2019. (See Swan Decl. ¶¶ 20–29, Ex. B; Seguin
Decl. ¶¶ 15–16).
Plaintiff's response to this defense is equivocal, at best. In a
prior pleading, plaintiff asserted that after returning from his
medical trip on August 9 th and being placed in the SHU,
he “sent [three] letters to grievants [sic] I never got mail
back or no one came to see me.” (Dkt. No. 5 at 11). Plaintiff
further alleged that when he got out of the SHU on August
20, 2019, he “went on a court trip so ... could not appeal to
the Superintendent within 72 hours[.]” (Id.).
At his deposition, plaintiff testified that while in the SHU
he made three attempts to file a grievance against C.O.
Price. (Pl.’s Dep. at 69–71). Plaintiff initially testified that
he heard back from one of the grievances, but admitted that
he could not remember if C.O. Price was named in that
specific grievance. (Id. at 72). Plaintiff then, alternatively,
asserted that C.O. Price was not named in all three of the
grievances he attempted to file in the SHU, and “he think[s]”
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C.O. Price was only named in two out of the three. (Id.).
Plaintiff could not remember if he received a response from
either grievance. (Id.). Nor could plaintiff remember what the
content of his grievances against C.O. Price actually were,
with respect to the two he allegedly attempted to file. (Id. at
73). Plaintiff testified that he wrote to the grievance office to
follow up about his grievance(s) against C.O. Price, but could
not remember how many times or the content of his follow-
up correspondences. (Id. at 73). Plaintiff admittedly did not
retain any copies of the purported grievances or follow-up
correspondences relative to his complaints against C.O. Price.
(Id. at 71–73). 5
5 Plaintiff testified that he was unable to make or
obtain copies of his grievance paperwork while
confined in the SHU. (Pl.’s Dep. at 70).
*7 Plaintiff's position is further confused by the arguments
contained in his opposition to the instant motion. There,
plaintiff asserts that he filed a grievance in “December of
2018,” then appealed the decision to CORC. (Pl.’s Br. at 6).
Plaintiff takes the position that, because he did not receive
a response from CORC within the 30 day deadline, his
administrative remedies should be deemed exhausted. (Pl.’s
Br. at 6).
Notwithstanding plaintiff's arguments, the record before this
court evidences his failure to exhaust administrative remedies
with respect to the latter excessive force claim against C.O.
Price, to the extent that an initial grievance was never filed,
nor was the claim appealed to CORC. As such, the question
becomes whether plaintiff's failure to exhaust should be
excused. To this end, the defendant has satisfied his initial
burden of “establishing ... that a grievance process exist[ed]
and applie[d] to the underlying dispute.” Hubbs v. Suffolk
County Sheriff's Dept., 788 F.3d 54, 59 (2d Cir. 2015)
(citation omitted). DOCCS regulations provide that inmates
in the SHU may file grievances by giving the complaint
to a correction officer to forward to the grievance clerk.
See N.Y.C.R.R. tit. 7, § 701.7. Thus, plaintiff assumes the
burden of producing evidence that one of the exceptions to
the administrative exhaustion requirement applies, excusing
his failure to exhaust and permitting his claim to survive
summary judgment. Id.
Liberally construed, plaintiff appears to argue that
administrative remedies were unavailable to him as a result
of his confinement in the SHU, and the restrictions imposed
on him there. In Williams v. Priatno, 829 F.3d 118, 123-27
(2d Cir. 2016), the Second Circuit considered whether
administrative remedies had been “actually available” to an
inmate housed in the SHU, in the context of grievances
allegedly submitted to facility staff, but purportedly never
filed. There, the plaintiff alleged that while housed in the
SHU, he drafted a grievance that he delivered to a correctional
officer to forward to the grievance office on his behalf. Id.
at 120-21. Approximately two weeks later, the plaintiff was
transferred to a different facility. Id. at 121. He never received
a response to his grievance and alleged that it was never filed
by the officer to whom he had given it. It was undisputed the
plaintiff never appealed the grievance. Id.
The defendants in Williams argued that even if the grievance
was never filed, the plaintiff was required to appeal it and
complete the grievance process. Id. at 124. The Second
Circuit rejected this argument and held that, for an inmate
in the plaintiff's situation, the regulatory scheme was so
“opaque” and “confusing” as to be practically unavailable.
Id. The Second Circuit found that DOCCS regulations “only
contemplate appeals of grievances that [have been] actually
filed ... [and] give no guidance whatsoever to an inmate
whose grievance was never filed.” Id. “Following the Second
Circuits decision in Williams, several courts have concluded
that where a grievance is both unfiled and unanswered,
the process to appeal ... is prohibitively opaque, such that
no inmate could actually make use of it.” Maldonado v.
Mandalaywala, No. 9:17-CV-1303 (BKS/TWD), 2020 WL
1159426, at *15 (N.D.N.Y. Feb. 12, 2020), report and
recommendation adopted, 2020 WL 1157643 (N.D.N.Y. Mar.
10, 2020) (internal quotation marks omitted) (listing cases).
*8 For the following reasons, this court does not find
Williams to be controlling in the instant matter. At the outset,
Williams reversed the underlying district court's decision on
the defendants’ motion to dismiss pursuant to Fed. R. Civ.
P. 12(b). Thus, the Second Circuit was compelled to accept
as true the allegations in Williams's complaint, including
his assertion that a particular correctional officer never filed
his grievance relevant to the subject claim. See Williams v.
Priatno, 829 F.3d at 124. At the summary judgment stage,
however, we are presented with a more complete record upon
which to determine the existence of any genuine issues of
material fact. See Chance v. Armstrong, 143 F.3d 698, 701 (2d
Cir. 1998). 6
6 In Chance, the Second Circuit noted the difference
between the motion to dismiss standard of review
and summary judgment standard in reversing the
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district court's dismissal of a complaint pursuant to
Rule 12(b):
It is important to recognize the difference
between disposing of a case on a 12(b)(6) motion
and resolving the case later in the proceedings,
for example by summary judgment. At the 12(b)
(6) stage, [t]he issue is not whether a plaintiff
is likely to prevail ultimately, but whether the
claimant is entitled to offer evidence to support
the claims. Indeed it may appear on the face of
the pleading that a recovery is very remote and
unlikely but that is not the test....
[Plaintiff] might not be able to prove his claims
at trial. And even at the summary judgment stage,
it may well become clear that [plaintiff] cannot
proffer sufficient proof to create genuine issues
of material fact. But in his complaint, he has
alleged facts that are not impossible to prove
and that, if demonstrated, would state a legally
cognizable claim.
Id. at 701 (internal quotation marks and citations
omitted) (alterations to original and emphasis
added).
Accordingly, in this instance the court need not mechanically
accept plaintiff's vague allegation that he “tri[ed] [three] times
to file a grievance [with] no response back.” (See Dkt. No. 5 at
10). Further discovery on the issue of exhaustion has revealed
that plaintiff did not satisfy his burden of production of
evidence overcoming the defendant's proof that the defendant
did not pursue the grievance process that was available to him.
Specifically, given plaintiff's uncertainty, and his inability
to confirm or document whether he actually attempted to
file a complaint against C.O. Price regarding the August 9,
2019 incident, he has not demonstrated a genuine issue of
material fact with respect to the availability of the grievance
process, notwithstanding the fact that he, like Williams, was
confined to the SHU. See, e.g., Armand v. Mosko, No. 13-
CV-5, 2019 WL 2374948, at *3 (W.D.N.Y. Apr. 9, 2019),
report and recommendation adopted, 2019 WL 2374001
(W.D.N.Y. June 4, 2019) (rejecting plaintiff's contention of
unavailability based on her claim that, while housed in the
SHU, she handed grievances to a corrections officer who
never filed them, where plaintiff gave conflicting statements
that were “unworthy of belief” that she actually filed the
relevant grievance).
Notwithstanding plaintiff's allegation that he attempted to
file a grievance against C.O. Price concerning the subject
incident, plaintiff's contradictory assertions regarding the
purported obstruction of his ability to do so undermine his
efforts to document a material issue of fact. Plaintiff testified
that he filed grievances during his confinement in the SHU,
and “no one stopped [him] from filing a grievance.” (Pl.’s
Dep. at 70). He elaborated that “[i]f they answered, that was
the problem.... you file one grievance then you have to be able
to get it through. Especially in the hole.” (Id.).
*9 Historically, unsupported assertions that a plaintiff “filed
a grievance but that it was somehow lost or destroyed” have
generally been found “insufficient to establish a genuine
issue of fact.” Blake v. Porlier, No. 9:18-CV-1008 (DNH/
CFH), 2019 WL 7484052, at *5 (N.D.N.Y. Oct. 4, 2019)
(“Courts within the Second Circuit have continuously held
that ‘mere contentions or speculation of grievances being
misplaced by officers do not create a genuine issue of material
fact when there is no evidence to support the allegations.’
”) (quoting Rodriguez v. Cross, No. 9:15-CV-1079 (GTS/
CFH), 2017 WL 2791063, at *5 (N.D.N.Y. May 9, 2017));
Artis v. Dishaw, No. 9:14-CV-1116 (MAD/ATB), 2016 WL
11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016) (finding
the plaintiff's failure to exhaust was not excusable, in part,
because while the plaintiff “state[d] that some grievances
were destroyed ... he ha[d] not submitted any copies of
these grievances, nor d[id] he specify when he attempted
to file them”), report-recommendation adopted, 2017 WL
1076343 (N.D.N.Y. Mar. 22, 2019); Engles v. Jones, No.
6:13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y. Dec.
28, 2018) (“Plaintiff's unsupported assertion that he filed
a grievance but that it was somehow lost or destroyed is
insufficient to establish a genuine issue of material fact.”)
(citing Scott v. Kastner Smith, 298 F. Supp. 3d 545, 555
(W.D.N.Y. 2018)).
At least one other district court has granted summary
judgment on exhaustion grounds notwithstanding Williams,
under circumstances where the plaintiff provided no
specifics related to a grievance purportedly filed during his
confinement in the SHU. See, e.g., Sankara v. Montgomery,
No. 9:16-CV-00885 (FJS/TWD), 2018 WL 4610686, at
*8 (N.D.N.Y. June 25, 2018), report and recommendation
adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018)
(“Plaintiff's conclusory allegations that the DOCCS IGP
was unavailable to him [while confined to the SHU] were
insufficient to withstand summary judgment,” where the
plaintiff “provided no evidence that he actually did write
grievances; when they were written; the content of the
grievances ... the officers named in the grievance(s) ...;
the specific steps taken by Plaintiff to provide them to an
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officer to send to the grievance office; and any specific
follow up with the grievance office[.]”); see also Tillman v.
Phillips, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5233308,
at *7 (N.D.N.Y. Nov. 10, 2021), report and recommendation
adopted, 2021 WL 5768393 (N.D.N.Y. Dec. 6, 2021)
(distinguishing the facts in that case from circumstances
outlined in Sankara, where plaintiff has provided no specifics
related to grievance purportedly filed in SHU.).
Here, the court does not merely consider plaintiff's lack of
direct evidence, such as copies of the relevant grievances,
in finding that he has failed to establish a genuine issue
of material fact as to unavailability. The court recognizes
that an inmate-plaintiff's ability to process his grievances
are curtailed to some extent while confined to the SHU.
See Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH), 2017
WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (“Inmates not
housed in the SHU are in a different position to SHU inmates
when determining if grievance procedures are ‘essentially
unknowable’ or unavailable.”) (citation omitted).
However, plaintiff in this case has “done nothing more
than allege in conclusory fashion that he attempted to file
[a] ... grievance” concerning excessive force at the hands of
C.O. Price in August 2019. He has provided no specifics
regarding when the grievances were written, their content,
or the steps he took to provide them to an officer to
send to the grievance office. There is also no documentary
evidence to corroborate the fact plaintiff attempted to file
a grievance, such as follow-up correspondences after his
release from SHU. For these reasons, the court concludes
that plaintiff's completely unsupported, unclear and vague
implication that a grievance he attempted to file against C.O.
Price relative to the August 9, 2019 incident was not properly
processed does not suffice to avoid summary judgment.
Cf. Stephanski v. Allen, No. 9:18-CV-0076 (BKS/CFH),
2020 WL 806331, at *9 (N.D.N.Y. Jan. 22, 2020), report
and recommendation adopted, 2020 WL 777268 (N.D.N.Y.
Feb. 18, 2020) (denying summary judgment despite lack of
direct evidence concerning defendant's interference with the
grievance he attempted to file while in SHU where plaintiff's
allegation of unavailability was supported by his proper
response to defendants’ statement of material facts, testimony
under oath on two separate occasions, and some corroborating
documentary evidence.). Accordingly, the court recommends
that C.O. Price be granted summary judgment and the second
amended complaint be dismissed against him as to this claim,
on the ground that plaintiff failed to exhaust his administrative
remedies.
B. Excessive Force
*10 Should the district court disagree with my
recommendation that the second amended complaint be
dismissed on exhaustion grounds, this court alternatively
recommends granting summary judgment on the merits
of plaintiff's Eighth Amendment excessive force claim, as
further discussed below.
1. Legal Standard
Inmates enjoy Eighth Amendment protection against the use
of excessive force, and may recover damages under 42 U.S.C.
§ 1983 for a violation of those rights. Hudson v. McMillian,
503 U.S. 1, 9-10 (1992). To sustain a claim of excessive force,
a plaintiff must still establish both the objective and subjective
elements of an Eighth Amendment claim. Blyden v. Mancusi,
186 F.3d 252, 262 (2d Cir. 1999); Romano v. Howarth, 998
F.2d 101, 105 (2d Cir. 1993).
In order to satisfy the objective element of the constitutional
standard for excessive force, a defendant's conduct must be
“ ‘inconsistent with the contemporary standards of decency.’
” Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation
omitted); Hudson, 503 U.S. at 9. The malicious use of force to
cause harm constitutes a per se Eighth Amendment violation,
regardless of the seriousness of the injuries. Blyden, 186
F.3d at 263 (citing Hudson, 503 U.S. at 9). “The Eighth
Amendment's prohibition of ‘cruel and unusual’ punishments
necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force
is not of a sort repugnant to the conscience of mankind.”
Hudson, 503 U.S. at 9-10 (citations omitted). “ ‘Not every
push or shove, even if it may later seem unnecessary
in the peace of a judge's chambers, violates a prisoner's
constitutional rights.’ ” Sims, 230 F.3d at 22 (citation omitted).
With respect to this element, the law is clear that “a claim of
excessive force may be established even if the victim does not
suffer ‘serious’ ... or ‘significant’ injury, ... provided that the
amount of force used is more than ‘de minimis,’ or involves
force that is ‘repugnant to the conscience of mankind.’ ”
Hudson, 503 U.S. at 7-10.
The subjective element requires a plaintiff to demonstrate
the “necessary level of culpability, shown by actions
characterized by wantonness.” Id. at 21 (citation omitted).
The wantonness inquiry “turns on ‘whether force was applied
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in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.’ ” Id. (quoting
Hudson, 503 U.S. at 7). In determining whether defendants
acted in a malicious or wanton manner, the Second Circuit has
identified five factors to consider: the extent of the injury and
the mental state of the defendant; “the need for the application
of force; the correlation between that need and the amount of
force used; the threat reasonably perceived by the defendants;
and any efforts made by the defendants to temper the severity
of a forceful response.” Scott v. Coughlin, 344 F.3d 282, 291
(2d Cir. 2003).
C. Application
With respect to the events of August 9, 2019, plaintiff's second
amended complaint states that C.O. Price was aware that
plaintiff had a “serious medical need” by virtue of “seeing
[plaintiff] with a cane and special shoes on [his] feet.” (SAC
at 2). Plaintiff also avers that the housing officer “called
[C.O. Price], letting him know [plaintiff] could not move fast
enough because of [an] abscess [on his leg].” (Id.). Plaintiff
contends that, despite this knowledge, C.O. Price “ignored the
seriousness” of plaintiff's condition and “placed a small leg
iron over [his] open wound[,]” causing the “wound to reopen
to the point that the medical trip was delayed[.]” (Id.). Plaintiff
then vaguely refers to “[f]oot and ankle injuries-causing
infection or disease.” (Id. at 3). Plaintiff provided additional
factual context at his deposition, the majority of which has
been previously summarized. In sum, plaintiff maintains that
C.O. Price knew that plaintiff had a permit for “big boy”
ankle restraints, due to a medical condition. Plaintiff testified
that despite this knowledge, C.O. Price attempted to force
standard sized ankle restraints on plaintiff because they were
running late for a medical appointment, causing an abscess
on his ankle to reopen and bleed in the process. (Pl.’s Dep.
at 52–56).
*11 For the following reasons, this court finds that plaintiff
has not established a genuine issue of material fact with
respect to either prong of the alleged Eighth Amendment
violation. As for the subjective component of plaintiff's
excessive force claim, no reasonable fact finder could
conclude that C.O. Price used force against the plaintiff
maliciously and sadistically to cause harm based on the
record presently before this court. Even assuming the truth of
plaintiff's allegations, C.O. Price was attempting to place the
standard size ankle restraints onto plaintiff because plaintiff
had arrived late and they had to “hurry up and go” in order
to make the medical appointment. (See Pl.’s Dep. at 52). It
is undisputed that plaintiff was running late for his medical
appointment, and that ankle restraints needed to be applied
before he could be transferred out of the facility. Thus, the
allegation that C.O. Price caused plaintiff's wound to reopen
and bleed as he was attempting to prepare plaintiff for his
medical trip, for which they were running late, does not rise
to the level of an improper or wanton motive on the part of
C.O. Price.
Moreover, the court finds that no reasonable fact finder
would credit plaintiff's unsupported allegation that C.O. Price
knew plaintiff required larger ankle restraints. C.O. Price
has submitted a sworn declaration stating that he had no
knowledge of plaintiff's purported medical permit for “big
boy” cuffs. (Price Decl. at ¶¶ 18–20). 7 The documentary
evidence submitted by C.O. Price in support of his motion,
including the August 9, 2019 itinerary and the August 20,
2019 Tier II hearing disposition, support C.O. Price's further
contention that plaintiff did not actually have a medical permit
for larger ankle restraints in place at the time of the subject
incident. (C.O. Price Decl. at ¶ 24, Exs. B, C). Plaintiff has
failed to provide any evidence beyond his own conclusory
statements in rebuttal. Because plaintiff has not submitted
“proof that tends to show that the alleged force used against
him was employed maliciously and sadistically to cause harm,
he has failed to satisfy the subjective prong of his excessive
force claim.” Chambliss v. Rosini, 808 F. Supp. 2d 658,
669 (S.D.N.Y. 2011) (citing Engles v. Dunbar, No. 09 Civ.
2457, 2010 WL 5538517, at *7 (S.D.N.Y. Dec. 30, 2010)
(concluding that the subjective component of excessive force
test not satisfied where uncontroverted evidence established
that force was used not maliciously or sadistically, but
instead to transport the plaintiff in order to receive medical
attention)).
7 Plaintiff did not respond to the defense's Statement
of Material Fact that “C.O. Price had no
recollection of such a permit as he had escorted
Plaintiff on previous medical trips where standard
sized restraints were utilized. Price Decl. ¶
20.” (Dkt. No. 41-5 at 3, ¶ 18).
Nor is the court convinced that plaintiff could satisfy the
objective component of his excessive force claim. Courts
in this district “routinely dismiss claims of excessive force
based on tight handcuffing where an inmate asserts only a de
minimis injury without plausible allegations of wantonness or
maliciousness.” Livingston v. Hoffnagle, No. 9:19-CV-0353
(GLS/CFH), 2019 WL 7500501, at *4 (N.D.N.Y. Nov. 8,
2019) (listing cases); see also Burroughs v. Mitchell, 325
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F. Supp.3d 249, 265 (N.D.N.Y. 2018) (dismissing pro se
inmate's excessive force claim where he alleged only that
the defendants “handcuffed him tightly, which caused cuts
to his wrist”) (internal quotation marks omitted); Burroughs
v. Petrone, 138 F. Supp. 3d 182, 213 (N.D.N.Y. 2015)
(dismissing excessive force claim based on tight handcuffing
where the complaint alleged, without more, that the handcuffs
caused “pain, swelling, and bruising”) (internal quotation
marks and brackets omitted).
Here, plaintiff merely alleges that, in attempting to place
restraints on his ankles, C.O. Price “popped open a scab”
on plaintiff's leg, causing it to bleed. (Pl.’s Dep. at 53–54,
65). C.O. Price disputes the fact that he caused any injury to
plaintiff with the restraints (Price Decl. at ¶ 32), and there
is no medical documentation before this court evidencing
the contrary. In any event, the parties agree that plaintiff
ultimately had his leg wrapped at the medical unit before
being transferred to SUNY Upstate. (Pl.’s Dep. at 53–54;
Price Decl. at ¶ 23). Assuming plaintiff's version of the facts,
his leg was wrapped but “still bleeding” when he was placed
in the SHU. (Pl.’s Dep. at 54). Plaintiff could not recall how
long it took for his wound to stop bleeding, but concedes that
he did not require stitches and that the wound healed “at some
point.” (Id. at 60–61, 65–66).
*12 Plaintiff testified that he did not obtain treatment for
the injury, other than wrapping his leg – however, plaintiff
concedes that his leg required continuous “wrapping” prior
to the alleged incident. (Id. at 66). Notwithstanding plaintiff's
self-serving assertion that his alleged injury caused him pain
which he described as a “9 ½” on a scale of one to ten,
given his de minimis injury, plaintiff has failed to document a
material issue of fact with respect to the objective component
of the excessive force standard. See Warren v. Purcell, No. 03
Civ. 8736, 2004 WL 1970642, at *8 (S.D.N.Y. Sept. 3, 2004)
(officers who placed prisoner in tight restraints did not violate
constitution where prisoner suffered de minimis injuries and
no improper or wanton motive was alleged for the officers’
actions).
WHEREFORE, based on the findings above, it is
RECOMMENDED, that defendant C.O. Price's motion
for summary judgment (Dkt. No. 41) be GRANTED,
and the second amended complaint DISMISSED IN ITS
ENTIRETY WITH PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days
within which to file written objections to the foregoing report.
Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
14 DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
All Citations
Not Reported in Fed. Supp., 2021 WL 7367083
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 142 of 306

Simpson v. Price
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:19-CV-01413
Simpson v. Cayuga Correctional Facility
— N.D.N.Y. Nov. 15, 2019 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 143 of 306

Simpson v. Price
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (8)
Direct History (2)
1. Simpson v. Price
2021 WL 7367083 , N.D.N.Y. , Dec. 29, 2021
Report and Recommendation Adopted by
2. Simpson v. Price
2022 WL 336540 , N.D.N.Y. , Feb. 04, 2022
Related References (6)
3. Simpson v. Cayuga Correctional Facility
2020 WL 8714804 , N.D.N.Y. , Jan. 03, 2020
4. Simpson v. Cayuga Correctional Facility
2020 WL 8714786 , N.D.N.Y. , Mar. 17, 2020
5. Simpson v. Price
2020 WL 8714784 , N.D.N.Y. , July 09, 2020
6. Simpson v. Price
2020 WL 8714783 , N.D.N.Y. , Aug. 14, 2020
7. Simpson v. Price
2020 WL 8714785 , N.D.N.Y. , Sep. 24, 2020
8. Simpson v. Price
2020 WL 8714787 , N.D.N.Y. , Oct. 22, 2020
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 144 of 306

Sankara v. Montgomery, Not Reported in Fed. Supp. (2018)
2018 WL 4610686
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 4610686
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ahmadou SANKARA, Plaintiff,
v.
MONTGOMERY, Burgess, Lopez, Defendants.
9:16-CV-00885 (FJS/TWD)
|
Signed 06/25/2018
Attorneys and Law Firms
AHMADOU SANKARA, 16-R-0122, Plaintiff pro se,
Upstate Correctional Facility, P.O. Box 2001, Malone, New
York.
HON. BARBARA D. UNDERWOOD, Attorney General
for the State of New York, OF COUNSEL: MATTHEW
P. REED, ESQ., The Capitol, Albany, New York 12224,
Counsel for Defendants.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 The sole remaining claim in pro se Plaintiff Ahmadou
Sankara’s amended complaint (Dkt. No. 19) in this civil
rights action brought under 42 U.S.C. § 1983 is his Eighth
Amendment conditions of confinement claim involving
the alleged denial of meals against Defendants Keith
Montgomery (“Montgomery”), a Department of Corrections
and Community Supervision (“DOCCS”) Sergeant at Fishkill
Correctional Facility (“Fishkill”); Erik Burgess (“Burgess”),
a Corrections Officer (“C.O.”) at Fishkill; and Jessica Lopez
(“Lopez”), a former C.O. at Fishkill. (Dkt. No. 22 at 22. 1 )
Montgomery, Burgess, and Lopez now move for summary
judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure on the grounds that Plaintiff has failed to
exhaust his administrative remedies and has failed to assert
a constitutional violation. (Dkt. Nos. 81 and 81-1.) Plaintiff
has filed papers in opposition to Defendants' motion. 2 (Dkt.
No. 84.)
1 Page references to documents identified by docket
number are to the numbers assigned by the CM/
ECF docketing system maintained by the Clerk’s
Office.
2 Plaintiff has filed a cross-notice of motion for
summary judgment seeking denial of Defendants'
summary judgment motion. (Dkt. No. 84-2).
Because Plaintiff is not cross-moving for summary
judgment in his favor, the Court is treating his
notice of motion as opposition to Defendants'
motion.
For reasons that follow, the Court recommends that
Defendants' motion for summary judgment be granted.
II. FACTUAL BACKGROUND
Plaintiff, an inmate in the custody of DOCCS, was transferred
to Fishkill on August 3, 2016. (Dkt. No. 19 at 11.) In
his amended complaint, Plaintiff alleges that his Eighth
Amendment conditions of confinement claim is based upon
having been deprived of meals by Defendant Burgess on
August 3, 2016, and August 4, 2016; by Defendants Lopez
and Montgomery on October 10, 2016, and September 24,
2016; and by Montgomery on October 23, 2016, and October
24, 2016. Id. At his deposition, Plaintiff testified he was
deprived of five meals by the Defendants, which included
dinner on August 3 and 4, 2016, and lunch on September 10,
2016, September 23, 2016, and September 24, 2016. (Dkt.
No. 81-3 at 19, 21, 26-27.)
A. Service of Meals in the Fishkill SHU
Meals are served three times a day in the Special Housing Unit
(“SHU”) at Fishkill. (Dkt. No. 81-4 at ¶ 7. 3 ) Before a meal
is served, an announcement is made on the public address
system once on each of the two floors notifying inmates of
the forthcoming meal, and reminding them to be awake, with
their lights on, fully clothed, and with any clothing lines in
their cell taken down. Id. at ¶¶ 8-9. It is made before meal
delivery so that inmates have time to prepare. Id. at ¶ 9.
The rules for meals are contained in the SHU rulebook given
to inmates when they are admitted to the unit. Id. at ¶ 10.
The rules have a dual purpose: to ensure that food is not
contaminated and to meet heightened security concerns in
SHU. Id. at ¶¶ 11-13. Plaintiff denies having received the
rulebook. (Dkt. No. 84 at ¶ 17.)
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Sankara v. Montgomery, Not Reported in Fed. Supp. (2018)
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3 Paragraph numbers are used where documents
identified by CM/ECF docket number contain
consecutively numbered paragraphs.
*2 Anywhere from five to seven officers assist in
delivering meals, with Defendant Montgomery either leading
or following behind the officers to address any problems when
he is on duty. Id. at ¶¶ 15-17. Inmates who do not comply
with the established procedures do not receive a meal. Id. at ¶
18. Failure to comply with the meal distribution procedures is
noted as a refusal of chow and recorded in the SHU logbook.
Id. at ¶ 14.
B. August 3 and 4, 2016
Plaintiff claims that on August 3, 2016, the day he arrived
at Fishkill, he was deprived of dinner by Defendant Burgess.
(Dkt. No. 81-3 at 19, 27.) Plaintiff testified at his deposition
that he received something like a box lunch with bread while
en route to Fishkill and should have been given dinner at
Fishkill but was not. Id. at 20. According to Plaintiff, dinner
is served at 3:00 or 4:00pm. Id. at 22. Plaintiff claims that he
and his bunk mate in SHU were denied dinner by Burgess
on August 3, 2016, because his bunk mate was not properly
dressed. Id. at 20-23, 27. Plaintiff was properly dressed and
did not say anything, but his bunk mate began arguing with
Burgess, which he was not supposed to do, so Burgess also
deprived them of dinner the following day, August 4, 2016.
Id. at 21, 27.
Plaintiff was very hungry and emotionally frustrated the night
of August 3, 2016, because he had not made himself breakfast
that morning, the lunch he was given was too small, and he
did not receive dinner. Id. at 26. Plaintiff did receive both
breakfast and lunch on August 4, 2016, missing only dinner.
Id. at 21-22.
While Burgess recalls Plaintiff and his behavior in SHU, he
does not recall the specific dates on which Plaintiff claims
Burgess deprived him of a meal. (Dkt. No. 81-5 at ¶ 5.)
There is an entry for August 3, 2016, in the SHU logbook in
indicating that Plaintiff was not admitted to SHU until 6:48
pm, after dinner would have been served. (Dkt. No. 81-3 at
124.) The logbook appears to note two refusals for dinner on
August 4, 2016, but does not list the inmates by name. Id. at
131.
C. September 10, 2016
Plaintiff testified at his deposition that on September 10,
2016, he was denied a haircut by a corrections officer
because Plaintiff had allegedly called him a Chinese officer,
which Plaintiff denies. (Dkt. No. 81-3 at 32-33.) The officer
wrote a misbehavior report on Plaintiff, and when the
officer and Montgomery came around serving lunch, Plaintiff,
who was standing in front of his door, was told he was
not properly dressed and did not receive lunch. Id. at 34.
Plaintiff did receive dinner on September 10, 2016. Id. at 36.
Although Montgomery recalls Plaintiff, he does not recall his
interactions with Plaintiff on the dates Plaintiff claims not to
have received his meals. (Dkt. No. 81-4 at ¶ 20.)
D. September 23, 2016
On September 23, 2016, recreation (“rec”) and lunch were
called at the same time. (Dkt. No. 81-3 at 39.) According to
Plaintiff, a SHU inmate cannot have rec and chow at the same
time. Id. Plaintiff was at rec with another inmate. Id. 39-40.
When they came in, Plaintiff told the sergeant he had been
at rec and needed his lunch. Id. at 39. At that time lunch had
not yet passed by Plaintiff’s door. Id. at 39-40. Plaintiff could
see the officers and talked to them when the food was next
to him, but Plaintiff was not given any. Id. at 40. Plaintiff has
identified Montgomery as the one who did not give him lunch.
Id. at 42.
*3 Plaintiff was very hungry so he started to kick the door
for them to bring his food. Id. They did not want to bring
his food so he left it alone. Id. Plaintiff did receive dinner on
September 23, 2016. Id. at 41.
E. September 24, 2016
Plaintiff testified at his deposition that on September 24,
2016, he stopped the Superintendent at Fishkill and started
to speak with him about the food issue going on. (Dkt. No.
81-3 at 42.) Montgomery told Plaintiff to talk fast and Plaintiff
said he knew Montgomery’s name even though he hid it,
and that Montgomery was the one who had denied him food
September 10 and 23, 2016. Id. After the Superintendent
left, Montgomery denied Plaintiff lunch again because he
had talked to the Superintendent. Id. at 42-43. Defendant
Lopez came to speak with Plaintiff when he began kicking his
door. Plaintiff was told they had already passed and were not
coming back, and they walked away. Id. at 43. When Plaintiff
started kicking the door because he was really hungry, Lopez
wrote a misbehavior report on which she stated he had been
sleeping. Id. Plaintiff testified that of the Defendants only
Montgomery was involved in depriving Plaintiff of lunch on
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September 23, 2016, and that both Montgomery and Lopez
were involved on September 24, 2016. Id. at 44.
III. APPLICABLE SUMMARY JUDGMENT LEGAL
STANDARDS
Summary judgment may be granted only if the submissions
of the parties taken together “show that there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56; see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). The party moving for summary judgment
bears the initial burden of showing, through the production
of admissible evidence, that no genuine issue of material
fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d
Cir. 2006). A dispute of fact is “genuine” if “the [record]
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248, 106
S.Ct. 2505.
Only after the moving party has met this burden is the
nonmoving party required to produce evidence demonstrating
that genuine issues of material fact exist. Salahuddin, 467
F.3d at 272-73. The nonmoving party must do more than
“rest upon the mere allegations ... of the [plaintiff’s] pleading”
or “simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). “Conclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of
fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit
admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72,
81 (2d Cir. 2010) (“It is well established that in determining
the appropriateness of a grant of summary judgment, [the
court] ... may rely only on admissible evidence.”) (citation
and internal quotation marks omitted). A plaintiff’s verified
complaint is to be treated as an affidavit. 4 Colon v. Coughlin,
58 F.3d 865, 872 (2d Cir. 1995) (“A verified complaint is to
be treated as an affidavit ... and therefore will be considered
in determining whether material issues of fact exist....”)
(citations omitted).
4 The Court finds that Plaintiff’s amended complaint
is properly verified under 28 U.S.C. § 1746. (Dkt.
No. 19 at 16.)
*4 In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d
Cir. 2005), the Second Circuit reminded that on summary
judgment motions “[t]he mere existence of a scintilla of
evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” “At the summary judgment
stage, a nonmoving party must offer some hard evidence
showing that its version of the events is not wholly fanciful.”
Id. (citation and internal quotation marks omitted). “To defeat
summary judgment, ... nonmoving parties may not rely
on conclusory allegations or unsubstantiated speculation.”
Jeffreys, 426 F.3d at 554 (citation and internal quotation marks
omitted). “[T]o satisfy Rule 56(e), affidavits must be based
upon ‘concrete particulars,’ not conclusory allegations.”
Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir.
1997) (citation omitted). “Statements that are devoid of any
specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists,
the court must resolve all ambiguities and draw all reasonable
inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
Where a party is proceeding pro se, the court is obliged to
“read [the pro se party’s] supporting papers liberally, and ...
interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
However, “a pro se party’s ‘bald assertion,’ unsupported by
evidence, is not sufficient to overcome a motion for summary
judgment.” Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF),
1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) 5 (citing
Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991) ).
5 Copies of all unpublished decisions cited herein
will be provided to Plaintiff in accordance with
LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
IV. PLAINTIFF'S FAILURE TO COMPLY FULLY
WITH N.D.N.Y. L.R. 7.1(a)(3)
While courts are required to give due deference to a plaintiff’s
pro se status, that status “does not relieve [a pro se] plaintiff of
his duty to meet the requirements necessary to defeat a motion
for summary judgment.” Jorgensen v. Epic/Sony Records, 351
F.3d 46, 50 (2d Cir. 2003). In opposing Defendants' summary
judgment motion, Plaintiff failed to respond to the statement
of material facts filed by Defendants in the manner required
under N.D.N.Y. L.R. 7.1(a)(3) by neglecting to set forth a
specific citation to the record in a number of instances where
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he appears to dispute a statement included in the statement of
undisputed facts. 6 (See Dkt. Nos. 81-2 and 84.)
6 L.R. 7.1(a)(3) requires the opposing party to file
a response to the movant’s Statement of Material
Facts. Under the rule, the response “shall mirror the
movant’s Statement of Material Facts by admitting
and/or denying each of the movant’s assertions in
matching numbered paragraphs. Each denial shall
set forth a specific citation to the record where the
factual issue arises.”
Where a party has failed to respond to the movant’s statement
of material facts in the manner required under N.D.N.Y.
L.R. 7.1(a)(3), the facts in the movant’s statement to which
Plaintiff has not properly responded will be accepted as
true (1) to the extent they are supported by evidence in
the record, 7 and (2) the nonmovant, if proceeding pro se,
has been specifically advised of the possible consequences
of failing to respond to the motion. 8 See Champion, v.
Artuz, 76 F.3d 483, 486 (2d Cir. 1996). However, the
Second Circuit, acknowledging a court’s broad discretion to
determine whether to overlook a failure to comply with local
rules, has held that “while a court is not required to consider
what the parties fail to point out in their [local rule statements
of material facts], it may in its discretion opt to conduct an
assiduous review of the entire record even where one of the
parties has failed to file such a statement.” Holtz v. Rockefeller
& Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and
internal quotation marks omitted). In deference to Plaintiff’s
pro se status and the significant degree of effort he has shown
in his response to Defendants' material statement of facts
(Dkt. No. 84), the Court has opted to review the entire record.
7 L.R. 7.1(a)(3) provides that “The Court shall
deem admitted any properly supported facts set
forth in the Statement of Material Facts that the
opposing party does not specifically controvert.”
However, see Vermont Teddy Bear Co., Inc. v. 1 800
Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004)
(“[I]n determining whether the moving party has
met his burden of showing the absence of a genuine
issue for trial, the district court may not rely solely
on the statement of undisputed facts in the moving
party’s [Statement of Material Facts]. It must be
satisfied that the citation to evidence in the record
supports the assertion.”) (citations omitted).
8 Defendants have complied with L.R. 56.2 by
providing Plaintiff with the requisite notice of the
consequences of his failure to respond to their
summary judgment motion. (Dkt. No. 81 at 2.)
V. EXHAUSTION OF ADMINISTRATIVE REMEDIES
A. Legal Standard
*5 Montgomery, Burgess, and Lopez seek summary
judgment on Plaintiff’s Eighth Amendment conditions of
confinement claim against them on the ground that Plaintiff
failed to exhaust his administrative remedies under the
DOCCS Inmate Grievance Procedure (“IGP”) with regard
to the claim. Under the Prison Litigation Reform Act of
1995 (“PLRA”), “[n]o action shall be brought with respect to
prison conditions under section 1983 ... by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a); see also Ross v. Blake, ––– U.S. ––––,
136 S.Ct. 1850, 1854-55, 195 L.Ed.2d 117 (2016). “[T]he
PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle, 534 U.S. 516,
532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). “There is no
question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court.” Jones
v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798
(2007).
The PLRA requires “proper exhaustion,” which means using
all steps required by the administrative review process
applicable to the institution in which an inmate is confined
and doing so properly. Jones, 549 U.S. at 218, 127 S.Ct. 910
(citing Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378,
165 L.Ed.2d 368 (2006) ); see also Amador v. Andrews, 655
F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates “using all
steps that the [government] agency holds out, and doing so
properly”) (internal quotations omitted). In New York State
prisons, DOCCS has a well-established three-step IGP. See
N.Y. Comp. Codes R. & Regs. (“N.Y.C.R.R.”) tit. 7, § 701.5.
First, an inmate must file a complaint with the facility IGP
clerk within twenty-one days of the alleged occurrence.
Id. § 701.5(a)(1). A representative of the facility’s IGRC
has sixteen calendar days from receipt of the grievance to
informally resolve the issue. Id. § 701.5(b)(1). If there is no
such informal resolution, the full IGRC conducts a hearing
within sixteen calendar days of receipt of the grievance, id. §
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701.5(b)(2), and issues a written decision within two working
days of the conclusion of the hearing. Id. § 701.5(b)(3).
Second, a grievant may appeal the IGRC’s decision to the
facility superintendent within seven calendar days of receipt
of the IGRC’s written decision. Id. § 701.5(c)(1). If the
grievance involves an institutional issue (as opposed to a
DOCCS-wide policy issue), the superintendent must issue a
written decision within twenty calendar days of receipt of the
grievant’s appeal. Id. § 701.5(c)(3)(ii). Grievances regarding
DOCCS-wide policy issues are forwarded directly to the
Central Office Review Committee (“CORC”) for a decision
under the process applicable to the third step. Id. § 701.5(c)
(3)(i).
Third, a grievant may appeal to CORC within seven working
days of receipt of the superintendent’s written decision. Id. §
701.5(d)(1)(i). CORC is to render a written decision within
thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)
(ii).
Special procedures are used when the grievance involves
a claim of staff misconduct. Id. § 701.8. A grievance
alleging staff misconduct, once it is given a number and
recorded, must be sent directly to the superintendent, and the
superintendent must issue a decision within twenty-five days.
Id. § 701.8(f). If the grievant wishes to appeal a decision by
the Superintendent to CORC, he must file a notice of decision
to appeal with the inmate grievance clerk at the bottom of the
Superintendent’s decision within seven days of receipt of the
decision. Id. § 701.8(h). CORC is required to render a written
decision within thirty calendar days of receipt of the appeal.
Id. § 701.8(i) (incorporating § 701.5).
As set forth above, at each step of the IGP, a decision
must be rendered within a specified time period. “Where
the IGRC and/or superintendent do not timely respond, an
inmate must appeal ‘to the next step,’ ” assuming there is
another step in the IGP. Eleby v. Smith, No. 9:15-CV-0281
(TJM/DEP), 2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2017)
(quoting 7 N.Y.C.R.R. § 701.6(g)(2) ); see also Smith v. Kelly,
985 F.Supp.2d 275, 281 (N.D.N.Y. 2013) (“[A]ny failure
by the IGRC or the superintendent to timely respond to a
grievance ... can and must be appealed to the next level ...
to complete the grievance process.”). Exhaustion under the
DOCCS IGP is not complete until the grievance has been
appealed to CORC and CORC has issued a decision. See Neal
v. Goord, 267 F.3d 116, 123 (2d Cir. 2001), overruled on other
grounds by Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002); Singh v. Goord, 520 F.Supp.2d 487, 495
(S.D.N.Y. 2007) (complete exhaustion to CORC, the highest
level, is required).
*6 While the PLRA mandates exhaustion of administrative
remedies, it also “contains its own, textual exception to
mandatory exhaustion.” Ross, 136 S.Ct. at 1858. More
specifically, section 1997e(a) provides that only those
administrative remedies that “are available” must first be
exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S.Ct.
at 1858 (“[T]he exhaustion requirement hinges on the
availability of administrative remedies[.]” (quotations and
citations omitted) ). In the PLRA context, the Supreme
Court has determined that “availability” means that “an
inmate is required to exhaust those, but only those, grievance
procedures that are capable of use to obtain some relief for the
action complained of.” Ross, 136 S.Ct. at 1859 (quotations
and internal citations omitted).
The Ross Court identified three circumstances in which a
court may find that internal administrative remedies are not
available to prisoners under the PLRA. Id. at 1859-60. First,
“an administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it
operates as a simple dead end with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates.” Id. at 1859. “Next, an administrative scheme
might be so opaque that it becomes, practically speaking,
incapable of use.” Id. Finally, an administrative remedy is not
“available” when “prison administrators thwart inmates from
taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 1860.
In Williams v. Corr. Officer Priatno, 829 F.3d 118, 123
n.2 (2d Cir. 2016), the Second Circuit noted that, “the
three circumstances discussed in Ross do not appear to
be exhaustive[.]” The illustrations of unavailability in Ross
nonetheless guide the Court’s inquiry. See Mena v. City of
New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4
(S.D.N.Y. July 19, 2016).
Because non-exhaustion is an affirmative defense, defendants
bear the burden of showing that a prisoner has failed to satisfy
the exhaustion requirements. See Jones, 549 U.S. at 216, 127
S.Ct. 910; Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.
2004), overruled on other grounds, Woodford, 548 U.S. at
94-95, 126 S.Ct. 2378. Plaintiff must then establish that the
DOCCS IGP was unavailable to him. See Jones, 549 U.S. at
216, 127 S.Ct. 910.
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B. Analysis
1. Plaintiff’s Failure to Exhaust
His Administrative Remedies
Fishkill had a fully functioning inmate grievance procedure
during the time Plaintiff was housed at the facility. (Dkt.
No. 81-7 at ¶ 12.) Fishkill IGP supervisor, Sally Reams
(“Reams”), has submitted a declaration describing the
DOCCS IGP procedures followed at Fishkill. (See generally
Dkt. No. 81-9.) According to Reams, she reviewed the records
in the Fishkill grievance office where all documents or copies
thereof related to a particular grievance dating back to January
1, 2013, are maintained. Id. at ¶¶ 9, 12. Her review revealed
that Plaintiff was housed at Fishkill from August 3, 2016,
to October 31, 2016, and during that time did not file any
grievance related to a denial of six meals at Fishkill between
August 3, 2016, and October 24, 2016. 9 Id. at ¶ 13.
9 The Court notes that Reams does not indicate in her
declaration whether Plaintiff filed any grievances
regarding one or more individual missed meal,
or a grievance regarding a number other than
six missed meals. (See Dkt. No. 81-9 at ¶ 13.)
Moreover, Reams has used the dates in Plaintiff’s
amended complaint rather than the corrected dates
in his deposition testimony for the time span during
which the missed meals occurred used by her in her
review. Id.
Joseph Cieslak (“Cieslak”), IGP supervisor at Mohawk
Correctional Facility (“Mohawk”), to which Plaintiff was
moved on October 31, 2016, has described the manner
in which the DOCCS IGP is followed at Mohawk. (See
generally Dkt. No. 81-8.) Cieslak reviewed the grievance
records in the grievance office at Mohawk and determined
that Plaintiff had not filed any formal grievances while at
Mohawk. Id. at ¶¶ 9-12.
*7 Rachael Seguin, Assistant Director of the DOCCS IGP,
has also submitted a declaration in support of Defendants'
motion. (Dkt. No. 81-7.) Seguin is the custodian of records
maintained by CORC. Id. at ¶ 2. The CORC database contains
files on inmate appeals to CORC for the current year and the
previous four calendar years. Id. at ¶ 7. Seguin reviewed the
CORC database for appeals related to Plaintiff’s claim in this
action and determined that he has never appealed a grievance
to CORC. Id. at ¶¶ 10-11 and pp. 7-8.
The Court finds that the Reams declaration is deficient in
showing that Plaintiff failed to file grievances with regard
to any of the missed meals since it indicates only that
her review of the grievance office records showed that
Plaintiff did not file a grievance related to “a denial of meals
on six occasions between August 3, 2016 and October 3,
2016.” (Dkt. Nos. 81-3 at 38-39; 81-9 at ¶ 13.) However,
inasmuch as the Seguin declaration and attached printouts
from the CORC database establish that Plaintiff has never
filed any appeals with CORC, the Court finds that Defendants
have met their burden of establishing that Plaintiff failed
to exhaust his administrative remedies with regard to his
Eighth Amendment conditions of confinement claim that
he was deprived of five meals by Defendants. See Jones,
549 U.S. at 218, 127 S.Ct. 910 (proper exhaustion under
the PLRA means using all steps required by the applicable
administrative review process).
2. Plaintiff’s Failure to Sustain His Burden on Availability
The Court also finds that Plaintiff has failed to submit
nonconlusory evidence of unavailability under Ross sufficient
to raise a material issue of fact on the question of availability
of the DOCCS IGP. In his amended complaint, Plaintiff
alleges “... also at Fishkill my SHU appel mail was not go
out and my grievance was not go out I was denied food at
Fishkill five times in the SHU....” (Dkt. No. 19 at 9.) Plaintiff
further alleges “[o]n August 3, 2016 I was transfer from Green
facility to Fishkill facility I don't know if Green facility write
note to Fishkill facility because same day on June 3, 2016
[August 3, 3016?] I was denied chow the next day I was denie
on June 4, 2016 [August 4. 2016?] I write grievance I never
receive my grievance respond....” Id. at 11.
At his deposition, Plaintiff testified he filed grievances for
“any matter that’s not procedure” and “for [his] right” and
never received a response. (Dkt. No. 81-3 at 60.) According
to Plaintiff, he filed grievances regarding missed meals at
Fishkill. Id. at 73. Plaintiff described the procedure followed
in the Fishkill SHU whereby inmates give grievances to
the corrections officer who comes around and drops the
grievances in a basket and claims that the officers only send
out the mail they want to send out. Id. at 74. Plaintiff claims
to have filed grievances all the time and believes that they
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probably did not go out because he never received a response.
Id.
Plaintiff testified he wrote to the superintendent about the
food situation because he had not heard back from the
I.G.R.C. Id. at 75. The superintendent wrote back and told
him to appeal his decision. Id. at 78. According to Plaintiff,
the superintendent told him to appeal to CORC regarding how
many times he was denied food in SHU, so he wrote to CORC
and retained a copy as was his practice and never received a
response. Id. at 77-78.
In his declaration in reply to the Reams declaration, Plaintiff
states that the Fishkill grievance office failed to respond to his
grievance of the Eighth Amendment violation. (Dkt. No. 84-1
at 2.) In his declaration in response to the Cieslak declaration,
Plaintiff states that Cieslak never filed or responded to any of
Plaintiff’s grievances at Mohawk. Id. at 4. In his declaration
in response to the Seguin declaration, the only grievance
referenced is a grievance dated June 21, 2017. Id. at 6.
Although not admissible evidence, Plaintiff repeats in his
response to Defendants' material statement of facts that his
grievances regarding being denied meals were taken but not
sent to the grievance office. (Dkt. No. 84 at ¶ 54.)
*8 Plaintiff has done nothing more than allege in conclusory
fashion that he attempted to file one or more grievances
concerning the denial of meals. He has provided no evidence
that he actually did write grievances; when they were written;
the content of the grievances, including the specific denial
of meals involved in the grievance; the officers named in
the grievance(s) as involved in the denials; the specific steps
taken by Plaintiff to provide them to an officer to send
to the grievance office; and any specific follow up with
the grievance office at Fishkill regarding the grievances.
Plaintiff has submitted no documentary evidence whatsoever
that supports his conclusory assertion that he submitted
grievances regarding the denial of meals or demonstrates any
follow up on his part when he allegedly received no response.
The Court concludes that Plaintiff’s conclusory accusations
that the DOCCS IGP was unavailable to him because
his grievances were not sent to the grievance office by
the officers who picked them up and because he did not
receive a response from CORC, unsupported by evidence, are
insufficient to withstand summary judgment. See Rodriguez
v. Cross, No. 15-CV-1079 (GTS/CFH), 2017 WL 2791063,
at *7 (N.D.N.Y. May 9, 2017) (“Courts in this Circuit
have consistently held that mere contentions or speculations
of grievances being misplaced by officers do not create a
genuine issue of material fact [on the availability of the
DOCCS IGP] when there is no evidence to support the
allegations”); Khudan v. Lee, No. 12-cv-8147 (RJS), 2016
WL 4735364, at *6 (S.D.N.Y. Sept. 8, 2016) (“Plaintiff’s
accusations [regarding grievances], which ‘stand alone’ and
are ‘unsupported,’ are insufficient to withstand summary
judgment”) (quoting Bolton v. City of New York, No. 13-
CV-5749 (RJS), 2015 WL 1822008, at *2 (S.D.N.Y. April 20,
2015) ).
Based upon the foregoing, the Court recommends that all
three Defendants be granted summary judgment on the
ground that Plaintiff failed to exhaust his administrative
remedies with regard to his Eighth Amendment claim.
VI. Eighth Amendment Claim Regarding Missed Meals
The Court is recommending that Defendants be granted
summary judgment on exhaustion grounds. However, if the
Court were to consider Defendants claim for entitlement to
judgment as a matter of law, it would recommend summary
judgment as a matter of law on Plaintiff’s Eighth Amendment
conditions of confinement claim as well.
A. Legal Standard for Eighth Amendment Conditions
of Confinement Claims for Depriving an Inmate of
Meals
The Eighth Amendment “imposes the constitutional
limitation upon punishments: they cannot be ‘cruel and
unusual.’ ” Rhodes v. Chapman, 452 U.S. 337, 345, 101
S.Ct. 2392, 69 L.Ed.2d 59 (1981). The Eighth Amendment
prohibits punishments which “involve the unnecessary and
wanton infliction of pain.” Id. at 346, 101 S.Ct. 2392
(quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976) ). “Among ‘unnecessary and
wanton’ inflictions of pain are those that are ‘totally without
penological justification.’ ” Id. (quoting Gregg, 428 U.S. at
183, 96 S.Ct. 2909).
The Second Circuit has held that the Constitution requires
that prisoners be fed nutritionally adequate food and “under
certain circumstances a substantial deprivation of food may
well be recognized as being of constitutional dimension.”
Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983); see also
Jackson v. Marks, 722 F. App'x 106, 107 (2d Cir. 2018)
(Mem) (“[A] substantial deprivation of food can cause serious
physical harm sufficient to find cruel and unusual punishment
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in violation of the Eighth Amendment.”) (citation and internal
quotation marks omitted).
In order to establish a claim that the denial of food
constitutes an Eighth Amendment violation, a prisoner must
establish that a “sufficiently serious condition” resulted from
not receiving food. Evans v. Albany County Correctional
Facility, No. 9:05-CV-1400 (GTS), 2009 WL 1401645, at
*9 (N.D.N.Y. May 14, 2009) (citation and internal quotation
marks omitted). To prove a conditions of confinement
claim, a prisoner must also establish that defendant acted
with deliberate indifference that defendant “knows of and
disregards an excessive risk to inmate health or safety.”
Phelps v. Kapnolas, 308 F.3d 180, 185-86 (2d Cir. 2002)
(quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994) ). “[T]he [defendant] must
both be aware of facts from which the inference could be
drawn that a substantial risk of harm exists, and he must also
draw that inference.” Id. at 186 (quoting Farmer, id.). The
“deliberate indifference” element is equivalent to standard of
“recklessness” as used in criminal law. Id.
B. Analysis
*9 Plaintiff claims to have missed a total of five meals
over a period of fifty-three days as a result of the actions
of the Defendants and never to have missed more than one
meal on a given day. (Dkt. No. 81-3 at 19, 21, 26-27, 80.)
Plaintiff contends Defendant Burgess denied him dinner on
August 3 and August 4, 2016; Montgomery denied him
lunch on September 10, 23, and 24, 2016; and Lopez with
Montgomery denied him lunch on September 24, 2016. (Dkt.
No. 81-3 at 19, 21, 27, 32-33, 42, 44, 55-56.) Neither Burgess
nor Montgomery has any recollection of interactions with
Plaintiff on the days he was allegedly denied meals. (Dkt.
Nos. 81-4 at ¶ 20; 81-5 at ¶ 5.)
According to Lopez, she only withheld a meal from Lopez on
one occasion because he was lying on his bed under a sheet
either asleep or pretending to be asleep. (Dkt. No. 81-6 at
¶¶ 11, 16.) Lopez did not deliver his meal because he was
not standing at his door fully dressed as required. Id. at ¶ 12.
A review of the logbook by Lopez revealed that the denial
occurred on September 24, 2016. Id. at ¶¶ 14-15. Lopez stated
in her declaration that it was not uncommon for Plaintiff to
pretend to be asleep during meals so that he could then allege
he had been denied the meal and use the allegations to be
disrespectful to officers and rile up the inmates. Id. at ¶ 13.
The Court finds that denying Plaintiff a single meal, as
alleged against Lopez, does not rise to the level of a
violation of Plaintiff’s rights under the Eighth Amendment.
See Cabassa v. Oshier, No. 9:11-CV-01237 (MAD/CFH),
2015 WL 5094802, at *5 (N.D.N.Y. Aug. 28, 2015) (denial
of a single meal fails to plausibly state an Eighth Amendment
claim); Pagan v. Quiros, No. 3:11-cv-1134 (DJS), 2014 WL
1057016, at *6 (D. Conn. Mar. 18, 2014) (holding that
allegation of denial food and drink at one meal “does not
constitute a substantial or sufficiently serious deprivation
of a basic human need”); Hankerson v. Nassau County
Correctional Facility, No. 12-CV-5282 (SJF) (WDW), 2012
WL 6055019, at *4 (E.D.N.Y. Dec. 4, 2012) (holding that
denial of a single meal “falls far short of a ‘substantial
deprivation of food’ and does not give rise to the level of a
constitutional deprivation.”).
The Court likewise concludes that Burgess’s alleged denial of
Plaintiff’s dinner on August 3 and 4, 2016, and Montgomery’s
alleged denial of Plaintiff’s lunch on September 10, 23, and
24, 2016, did not rise to the level of a violation of Plaintiff’s
rights under the Eighth Amendment. One missed meal a day
has been found insufficient to establish an Eighth Amendment
claim. See Benitez v, Locastro, No. 04-CV-423, 2008 WL
4767439, at *7 (N.D.N.Y. Oct. 29, 2008) (claim of one missed
meal a day insufficient to establish an Eighth Amendment
claim); Johnson v. Merriman, No. 1:13-cv-00087-MP-GRJ,
2015 WL 1409529, at *4 (N.D. Fl., Gainesville Div. March
26, 2015) (where the most each of three defendants could
have personally deprived plaintiff of meals was one meal a
day for a period of three days, the denial of the meals was
not sufficiently severe to rise to the level of a constitutional
violation).
Moreover, Plaintiff has failed to submit evidence showing that
a “sufficiently serious condition” resulted from not receiving
food. See Evans, 2009 WL 1401645, at *9. Plaintiff testified at
his deposition that he was hungry and emotionally frustrated
as a result of not having dinner on August 3, 2016, after
having failed to make himself breakfast and traveled all day
with only a small lunch en route. (Dkt. No. 81-3 at 26.)
Plaintiff was hungry and emotionally frustrated after not
receiving lunch on September 10, 2016, as well. Id. at 37.
*10 In sum, the evidence supports a finding by the Court that
the claimed denial of meals by each of the three Defendants
falls short of that required to support an Eighth Amendment
violation, and the evidence does not support a finding that
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Plaintiff suffered a sufficiently serious condition from any of
the three Defendants' denial of a meal or meals.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary
judgment (Dkt. No. 81) be GRANTED; and it hereby
ORDERED that the Clerk provide Plaintiff with a copy of
this Order and Report-Recommendation, along with copies
of the unpublished decisions cited herein in accordance with
the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76
(2d Cir. 2009) (per curiam ). Pursuant to 28 U.S.C. § 636(b)
(1), the parties have fourteen days within which to file written
objections to the foregoing report. 10 Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health
and Human Services, 892 F.2d 15 (2d Cir. 1989) ); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
10 If you are proceeding pro se and are served with this
Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day
period, meaning that you have seventeen days from
the date the Order and Report-Recommendation
was mailed to you to serve and file objections. Fed.
R. Civ. P. 6(d). If the last day of that prescribed
period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the
next day that is not a Saturday, Sunday, or legal
holiday. Fed. R. Civ. 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2018 WL 4610686
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Sankara v. Montgomery
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Filings (1)
Title PDF Court Date Type
1. Docket 9:16-CV-00885
Sankara v. The State of New York et al
— N.D.N.Y. July 19, 2016 Docket
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Sankara v. Montgomery
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History (2)
Direct History (2)
1. Sankara v. Montgomery
2018 WL 4610686 , N.D.N.Y. , June 25, 2018
Report and Recommendation Adopted by
2. Sankara v. Montgomery
2018 WL 3408135 , N.D.N.Y. , July 13, 2018 , appeal dismissed (2d Cir. 18-2159) ( Nov 07, 2018 )
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 155 of 306

Sankara v. Montgomery
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 156 of 306

Sankara v. Montgomery, Not Reported in Fed. Supp. (2018)
2018 WL 3408135
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 3408135
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ahmadou SANKARA, Plaintiff,
v.
MONTGOMERY, Burgess and Lopez, Defendants.
9:16-CV-885 (FJS/TWD)
|
Signed 07/13/2018
Attorneys and Law Firms
AHMADOU SANKARA, 16-R-122, Coxsackie Correctional
Facility, P.O. Box 999, Coxsackie, New York 12051, pro se.
OFFICE OF THE NEW YORK, STATE ATTORNEY
GENERAL, OF COUNSEL, MATTHEW P. REED, AAG,
The Capitol, Albany, New York 12224, Attorneys for
Defendants.
ORDER
Frederick J. Scullin, Jr., Senior United States District Judge
*1 The sole remaining claim in this civil rights action
is Plaintiff’s Eighth Amendment conditions-of-confinement
claim involving the alleged denial of meals against
Defendants Keith Montgomery, a Department of Corrections
and Community Supervision (“DOCCS”) Sergeant at Fishkill
Correctional Facility; Erik Burgess, a Corrections Officer at
Fishkill Correctional Facility; and Jessica Lopez, a former
Corrections Officer at Fishkill Correctional Facility.
Defendants moved for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure on the grounds that
Plaintiff had failed to exhaust his administrative remedies and
had not asserted a constitutional violation. See Dkt. No. 81.
Plaintiff filed papers in opposition to Defendants' motion. See
Dkt. No. 84.
In a Order and Report-Recommendation dated June 25,
2018, Magistrate Judge Dancks recommended that this
Court grant Defendants' motion for summary judgment. See
Dkt. No. 88. Specifically, after thoroughly reviewing the
record, she concluded that Plaintiff had failed to exhaust
his administrative remedies with regard to his Eighth
Amendment claim. See id. at 9-17. Alternatively, she found
that summary judgment was warranted because the evidence
fell “short of that required to support an Eighth Amendment
violation, and the evidence [did] not support a finding that
Plaintiff [had] suffered a sufficiently serious condition [as a
result of the] denial of a meal or meals.” See id. at 21.
On July 2, 2018, the Court received Plaintiff’s objections to
Magistrate Judge Danck’s recommendations. See Dkt. No. 89.
After reviewing a magistrate judge’s recommendations,
the district court may accept, reject or modify those
recommendations. See 28 U.S.C. § 636(b)(1). The court
reviews de novo those portions of the magistrate judge’s
recommendations to which a party objects. See Pizzaro
v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). “
‘If, however, the party “makes only conclusory or general
objections, or simply reiterates his original arguments, the
Court reviews the Report and Recommendation only for clear
error.’ ” ” McAllan v. Von Essen, 517 F. Supp. 2d 672, 679
(S.D.N.Y. 2007) (quotation and other citations omitted).
Plaintiff’s objections are, for the most part, general and
conclusory. In addition, some of his objections do not
refer to his Eighth Amendment claim but, rather, concern
claims that this Court has already dismissed. Moreover,
to the extent that Plaintiff objects to Magistrate Judge
Dancks' recommendations regarding the issue of whether
he exhausted his administrative remedies, Plaintiff basically
makes the same arguments that he made in opposition to
Defendants' motion for summary judgment, which Magistrate
Judge Dancks thoroughly reviewed and found no evidence
to support Plaintiff’s contention that he had filed grievances
regarding the denial of meals.
Alternatively, the Court notes that, even if it were to find
that Plaintiff had exhausted his administrative remedies with
regard to denial of his meals, Defendants would still be
entitled to summary judgment on Plaintiff’s claim because,
as Magistrate Judge Dancks thoroughly explained, the denial
of five meals over the course of fifty-three days does not rise
to the level of a violation of Plaintiff’s Eighth Amendment
rights; and, furthermore, the evidence does not support a
finding that Plaintiff suffered a sufficiently serious condition
as a result of Defendants' denial of those meals.
*2 Accordingly, having reviewed the entire file in this
matter, Magistrate Judge Dancks' June 25, 2018 Order and
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Sankara v. Montgomery, Not Reported in Fed. Supp. (2018)
2018 WL 3408135
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Report-Recommendation, and Plaintiff’s objections thereto,
as well as the applicable law, the Court hereby
ORDERS that Magistrate Judge Dancks' June 25, 2018
Order and Report-Recommendation, see Dkt. No. 88, is
ACCEPTED in its entirety for the reasons stated therein;
and the Court further
ORDERS that Defendants' motion for summary judgment,
see Dkt. No. 81, is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
favor of Defendants and close this case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 3408135
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 158 of 306

Sankara v. Montgomery
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:16-CV-00885
Sankara v. The State of New York et al
— N.D.N.Y. July 19, 2016 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 159 of 306

Sankara v. Montgomery
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Sankara v. Montgomery
2018 WL 4610686 , N.D.N.Y. , June 25, 2018
Report and Recommendation Adopted by
2. Sankara v. Montgomery
2018 WL 3408135 , N.D.N.Y. , July 13, 2018 , appeal dismissed (2d Cir. 18-2159) ( Nov 07, 2018 )
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 160 of 306

Simpson v. Price, Not Reported in Fed. Supp. (2022)
2022 WL 336540
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 336540
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James SIMPSON, Plaintiff,
v.
R. PRICE, C.O., Defendant.
9:19-CV-1413 (MAD/ATB)
|
Signed 02/04/2022
Attorneys and Law Firms
JAMES SIMPSON, 18-B-0295, Cayuga Correctional
Facility, P.O. Box 1186, Moravia, New York 13118, Plaintiff
pro se.
OF COUNSEL: KONSTANDINOS D. LERIS, AAG,
OFFICE OF THE NEW YORK, STATE ATTORNEY
GENERAL, The Capitol, Albany, New York 12224,
Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, United States District Judge:
I. INTRODUCTION
*1 On November 15, 2019, Plaintiff, an inmate in the
custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”), filed his original
complaint in this matter pursuant to 42 U.S.C. § 1983.
See Dkt. No. 1. On January 3, 2020, the Court dismissed
the complaint on initial review and permitted Plaintiff an
opportunity to file an amended complaint. See Dkt. No. 4.
Plaintiff filed his amended complaint on January 21, 2020,
which the Court accepted for filing to the extent that it
asserted an Eighth Amendment excessive force claim against
Defendant Price stemming from events that occurred on
August 9, 2019. See Dkt. Nos. 5 & 8. Plaintiff was granted
leave to file a second amended complaint on September 24,
2020, and the second amended complaint was accepted for
filing to the extent that it asserted an additional excessive
force claim against Defendant arising from events that
occurred on October 10, 2018. See Dkt. No. 29.
On August 24, 2021, Defendant moved for summary
judgment. See Dkt. No. 41. On September 9, 2021,
Plaintiff responded to Defendant's motion. See Dkt. No. 43.
In a Report-Recommendation dated December 29, 2021,
Magistrate Judge Baxter recommended that the Court grant
Defendant's motion in its entirety and dismiss this case.
See Dkt. No. 46. In his Report-Recommendation, Magistrate
Judge Baxter first found that Defendant was not personally
involved in the October 10, 2018 incident. See id. at 9. As to
the August 9, 2019 excessive force claim, Magistrate Judge
Baxter initially found that dismissal is appropriate because
Plaintiff failed to exhaust his administrative remedies. See
id. at 13-21. Alternatively, Magistrate Judge Baxter found
that the claim should be dismissed on the merits because
Plaintiff failed to establish both the subjective and objective
components of an Eighth Amendment excessive force claim.
See id. at 23-26.
In objections received on January 13, 2022, Plaintiff argues,
in an entirely conclusory manner, that he has set forth a valid
Eighth Amendment excessive force claim. See Dkt. No. 47 at
1-4. Additionally, Plaintiff contends that he was not required
to exhaust his claim stemming from the events on August 9,
2019 because of the “futility exception.” Id. at 2. As set forth
below, Defendant's motion for summary judgment is granted
in its entirety.
II. BACKGROUND
For a complete recitation of the relevant factual background,
the parties are referred to Magistrate Judge Baxter's
December 29, 2021 Report-Recommendation. See Dkt. No.
46.
III. DISCUSSION
A. Standard of Review
When a party files specific objections to a magistrate judge's
report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). However, when a party
files “[g]eneral or conclusory objections, or objections which
merely recite the same arguments [that he] presented to the
magistrate judge,” the court reviews those recommendations
for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322,
2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations
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Simpson v. Price, Not Reported in Fed. Supp. (2022)
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and footnote omitted). After the appropriate review, “the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
*2 A court may grant a motion for summary judgment only
if it determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the movant as a matter of law.
See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d
Cir. 1994) (citations omitted). When analyzing a summary
judgment motion, the court “cannot try issues of fact; it can
only determine whether there are issues to be tried.” Id. at 36–
37 (quotation and other citation omitted). Moreover, it is well-
settled that a party opposing a motion for summary judgment
may not simply rely on the assertions in its pleadings. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting
Fed. R. Civ. P. 56 (c), (e)).
In assessing the record to determine whether any such issues
of material fact exist, the court is required to resolve all
ambiguities and draw all reasonable inferences in favor of
the nonmoving party. See Chambers, 43 F.3d at 36 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986))
(other citations omitted). Where the non-movant either does
not respond to the motion or fails to dispute the movant's
statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather the court
must be satisfied that the citations to evidence in the record
support the movant's assertions. See Giannullo v. City of
New York., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding
that not verifying in the record the assertions in the motion
for summary judgment “would derogate the truth-finding
functions of the judicial process by substituting convenience
for facts”).
“Assessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the
court on summary judgment.” Jeffreys v. City of New York,
426 F.3d 549, 553–54 (2d Cir. 2005) (quotation omitted).
“However, ‘[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find
for the plaintiff.” Id. (quoting Anderson, 477 U.S. at 252
(emphasis and alterations in original)). “To defeat summary
judgment, therefore, nonmoving parties ‘must do more than
simply show that there is some metaphysical doubt as to
the material facts,’ ... and they ‘may not rely on conclusory
allegations or unsubstantiated speculation.’ ” Id. (quotations
omitted).
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has opined that the court is obligated
to “make reasonable allowances to protect pro se litigants”
from inadvertently forfeiting legal rights merely because they
lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)). “However, this does not mean that
a pro se litigant is excused from following the procedural
requirements of summary judgment.” Kotler v. Fischer, No.
9:09-CV-01443, 2012 WL 929823, *12 (N.D.N.Y. Mar. 19,
2012) (citations omitted). Specifically, “a pro se party's
‘bald assertion,’ completely unsupported by evidence is not
sufficient to overcome a motion for summary judgment.” Lee
v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing
Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B. October 10, 2018 Incident
In his second amended complaint, Plaintiff alleges that on
October 10, 2018, he had a medical appointment outside of
Cayuga Correctional Facility (“Cayuga C.F.”). See Dkt. No.
30 at 2. Plaintiff informed the correctional officers responsible
for his transport that the leg irons that he was placed in were
too small for his ankles. See id. The officers ignored Plaintiff's
complaints, resulting in severe bruises and aggravation of an
open wound on his ankle. See id.
*3 In its initial review of Plaintiff's second amended
complaint, the Court read the pleading as alleging that
Defendant Price was one of the officers who transported
Plaintiff to his medical appointment on October 10, 2018.
See Dkt. No. 29 at 3. At Plaintiff's deposition, however,
he confirmed that Defendant Price was not involved in the
October 10, 2018 incident. See Dkt. No. 41-1 at 41. Since
Defendant Price was not present at the time of the October 10,
2018 incident, the undisputed facts demonstrate that he was
not personally involved in any constitutional violation. As
such, Magistrate Judge Baxter correctly determined that this
claim must be dismissed due to Defendant's lack of personal
involvement. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994).
C. August 9, 2019 Incident
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Simpson v. Price, Not Reported in Fed. Supp. (2022)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
1. Exhaustion of Administrative Remedies
As Magistrate Judge Baxter correctly determined, the
excessive force claim stemming from the incident on August
9, 2019 should be dismissed due to Plaintiff's failure to
exhaust. The undisputed facts before the Court establish that
there is no record of a grievance being filed regarding this
incident and that, even if such a grievance was filed, the
denial of the grievance was not appealed to the CORC.
See Dkt. No. 46 at 13-15; Dkt. No. 41-3; Dkt. No. 41-4.
Plaintiff attempts to argue that the grievance process was
unavailable to him, but his explanations/arguments have
evolved over time and are insufficient to establish his
burden of demonstrating unavailability, as fully explained
by Magistrate Judge Baxter. See Dkt. No. 46 at 13-20.
Plaintiff has provided no specifics regarding when the alleged
grievances were written, their content, or the steps that he took
to provide them to an officer to send to the grievance office.
Additionally, Plaintiff has failed to provide the Court with
any documentary evidence to corroborate that he attempted
to file a grievance, such as follow-up correspondence after
his release from SHU. As such, the Court finds that Plaintiff's
conclusory allegations are insufficient to defeat summary
judgment. See Sankara v. Montgomery, No. 9:16-cv-885,
2018 WL 4610686, *8 (N.D.N.Y. June 25, 2018) (“Plaintiff's
conclusory allegations that the DOCCS IGP was unavailable
to him [while confined to the SHU] were insufficient to
withstand summary judgment,” where the plaintiff “provided
no evidence that he actually did write grievances; when
they were written; the content of the grievances; ... the
officers named in the grievance(s) ...; the specific steps
taken by Plaintiff to provide them to an officer to send to
the grievance office; and any specific follow up with the
grievance office”). Plaintiff's objections to Magistrate Judge
Baxter's Report-Recommendation simply reiterate his belief
that administrative remedies were unavailable to him in an
entirely conclusory fashion. See Dkt. No. 47 at 2.
Accordingly, the Court's Defendant's motion for summary
judgment as to this claim based on Plaintiff's failure to exhaust
the available administrative remedies.
2. Merits
Magistrate Judge Baxter also correctly found, in the
alternative, that Plaintiff's excessive force claim relating to the
August 9, 2019 incident should be dismissed on the merits.
This incident again involves the application of leg irons on
Plaintiff while he was being transported that were allegedly
too small and caused a wound to reopen, resulting in an
infection. See Dkt. No. 46 at 23.
According to the undisputed facts, on August 9, 2019,
Plaintiff had an appointment at SUNY Upstate Medical
University at 9:45 a.m. See Dkt. No. 41-2 at ¶¶ 10-11. Plaintiff
was required to arrive at the departure location at Cayuga
C.F. no later than 8:15 a.m. for an 8:30 a.m. departure. See
id. at ¶¶ 11-12. Plaintiff arrived at the transport location at
8:45 a.m., at which point he was frisked and then placed
in the transport van. See id. at ¶¶ 13-14. Once Plaintiff was
placed in the van, Defendant attempted to place standard-
sized ankle restraints on Plaintiff, which Plaintiff refused. See
id. at ¶ 15. Plaintiff told Defendant that he would not wear
the standard-sized restraints, and that he had a permit for “big
boy” cuffs to ease the pressure placed on chronic wounds on
his ankles and feet. See id. at ¶ 17. At this point, Defendant
stopped attempting to place the standard-sized leg restraints
on Plaintiff and contacted the area supervisor. See id. at ¶
21. Defendant and the supervisor then escorted Plaintiff from
the van to the infirmary, where Plaintiff spoke with Nurse
Giovannetti. See id. at ¶ 22. Nurse Giovannetti placed a gauze
bandage around one of Plaintiff's ankles and, at this point,
Plaintiff agreed to continue on the medical trip. See id. at ¶ 23.
*4 Additionally, while at the infirmary, Defendant and the
supervisor checked with the Deputy Superintendent's Office
and Medical Office for any documentation concerning a
permit approving Plaintiff for larger restraints. See id. at ¶
24. Neither office found any documentation and, therefore, it
was determined that standard-sized ankle restraints would be
used. See id. Upon returning to the van, Plaintiff permitted
Defendant to apply the standard-sized restraints without
further complaint. See id. The delay caused by the trip to the
infirmary and checking for the existence of the permit resulted
in Plaintiff arriving for his medical appointment thirty-five
minutes after the scheduled arrival time. See id. at ¶ 26.
As Magistrate Judge Baxter correctly determined, the
undisputed facts, beyond Plaintiff's own conclusory
assertions, demonstrate that the alleged force was not
employed in a sadistic or malicious manner intending to cause
harm. As such, he has failed to satisfy the subjective prong
of his excessive force claim. See Chambliss v. Rosini, 808
F. Supp. 2d 658, 669 (S.D.N.Y. 2011) (citation omitted).
Moreover, Plaintiff has failed to satisfy the objective prong
of his excessive force claim since he has alleged only
de minimis injury without any plausible allegations of
wantonness or maliciousness. See Livingston v. Hoffnagle,
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Simpson v. Price, Not Reported in Fed. Supp. (2022)
2022 WL 336540
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
No. 9:19-cv-353, 2019 WL 7500501, *4 (N.D.N.Y. Nov. 8,
2019) (listing cases); see also Burroughs v. Mitchell, 325 F.
Supp. 3d 249, 265 (N.D.N.Y. 2018) (dismissing the pro se
inmate's excessive force claim where he alleged only that the
defendants “handcuffed him tightly, which caused cuts to his
wrist”).
Based on the foregoing, the finds that Defendant is entitled to
summary judgment on this alternative ground.
IV. CONCLUSION
Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter's December 29, 2021
Report-Recommendation (Dkt. No. 46) is ADOPTED in its
entirety for the reasons set forth therein; and the Court
ORDERS that Defendant's motion for summary judgment
(Dkt. No. 41) is GRANTED in its entirety; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in
Defendant's favor and close this case; 1 and the Court further
1 In a one-page letter motion dated January 18,
2022, Plaintiff asks the Court “for permission for
the defendant to take a voice analysis with my
question, about the event that happen [sic] at my
cost.” Dkt. No. 48. It is entirely unclear what
Plaintiff is seeking in this letter motion. However,
since the Court has granted Defendant's motion for
summary judgment in its entirety, this letter motion
is denied as moot.
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 336540
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 164 of 306

Simpson v. Price
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:19-CV-01413
Simpson v. Cayuga Correctional Facility
— N.D.N.Y. Nov. 15, 2019 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 165 of 306

Simpson v. Price
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (8)
Direct History (2)
1. Simpson v. Price
2021 WL 7367083 , N.D.N.Y. , Dec. 29, 2021
Report and Recommendation Adopted by
2. Simpson v. Price
2022 WL 336540 , N.D.N.Y. , Feb. 04, 2022
Related References (6)
3. Simpson v. Cayuga Correctional Facility
2020 WL 8714804 , N.D.N.Y. , Jan. 03, 2020
4. Simpson v. Cayuga Correctional Facility
2020 WL 8714786 , N.D.N.Y. , Mar. 17, 2020
5. Simpson v. Price
2020 WL 8714784 , N.D.N.Y. , July 09, 2020
6. Simpson v. Price
2020 WL 8714783 , N.D.N.Y. , Aug. 14, 2020
7. Simpson v. Price
2020 WL 8714785 , N.D.N.Y. , Sep. 24, 2020
8. Simpson v. Price
2020 WL 8714787 , N.D.N.Y. , Oct. 22, 2020
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 166 of 306

Jenkins v. Cordero, Not Reported in Fed. Supp. (2019)
2019 WL 2121655
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 2121655
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Gerard JENKINS, Plaintiff,
v.
Correction Officer J. CORDERO, Correction
Officer Mayfield, Hearing Officer: Assistant Deputy
Superintendent of Programs J. Wood, Defendants.
17 Civ. 1592 (JCM)
|
Signed 05/15/2019
Attorneys and Law Firms
Gerard Jenkins, Otisville, NY, pro se.
Jeb Harben, Kacie Alina Lally, Office of the Attorney
General, New York, NY, for Defendants.
OPINION AND ORDER
JUDITH C. McCARTHY, United States Magistrate Judge
*1 Plaintiff Gerard Jenkins (“Plaintiff”) proceeding pro
se commenced this action pursuant to 42 U.S.C. § 1983
alleging violations of his Eighth Amendment and Fourteenth
Amendment rights. 1 (Docket No. 2). The Court held an
evidentiary hearing on January 30, 2019 on the issue of
whether Plaintiff exhausted his administrative remedies under
the Prison Litigation Reform Act (“PLRA”). The parties
submitted post-hearing briefs. 2 For the reasons set forth
below, after hearing the testimony and considering the post-
hearing briefs, the Court finds that Plaintiff has satisfied the
exhaustion requirements of the PLRA.
1 This action is before this Court for all purposes on
the consent of the parties, pursuant to 28 U.S.C. §
636(c). (Docket No. 47).
2 The parties' briefs are hereinafter referred to as
“Pl. Br.” and “Defs. Br.” respectively. (Docket Nos.
68, 72). All page number citations refer to the one
assigned upon electronic filing.
I. BACKGROUND
A. Procedural Background
On March 2, 2017, Plaintiff filed a complaint alleging (i)
correction officers Cordero and Mayfield used excessive
force against him while he was incarcerated at Sing Sing
Correctional Facility (“Sing Sing”); and (ii) defendant Deputy
Superintendent of Programs Wood violated his due process
rights by improperly disciplining him on allegedly false
charges. (Docket No. 2). Defendants moved to dismiss
the complaint against them claiming that Plaintiff failed
to exhaust his administrative remedies with respect to his
Eighth Amendment claim and did not plausibly allege
his Fourteenth Amendment claim. (Docket No. 14). The
Honorable Vincent L. Briccetti denied the motion to dismiss
as to the Eighth Amendment excessive force claim against
defendants Cordero and Mayfield, holding that dismissal for
failure to exhaust administrative remedies was unwarranted at
the pleading stage. Jenkins v. Cordero, No. 17 Civ. 1592 (VB),
2018 WL 456311, at *3 (S.D.N.Y. Jan. 17, 2018). 3 Judge
Briccetti granted the motion to dismiss as to the Fourteenth
Amendment claim against defendant Wood, finding that
Plaintiff failed to plausibly allege this claim. Id. at *3-4.
3 In accordance with Lebron v. Sanders, 557 F.3d
76 (2d Cir. 2009) and Local Rule 7.2 of the Local
Civil Rules of the United States District Courts for
the Southern and Eastern Districts of New York,
a copy of this case and other cases, infra, that
are unpublished or only available by electronic
database, accompany this opinion and shall be
simultaneously delivered to pro se Plaintiff.
Following the close of discovery, Defendants requested an
evidentiary hearing to determine whether Plaintiff exhausted
his administrative remedies given the dispute over whether
Plaintiff ever attempted to file a grievance within the
timeframe required by the Department of Corrections and
Community Supervision (“DOCCS”). (Docket No. 36). Judge
Briccetti granted Defendants' request for an evidentiary
hearing, and the parties subsequently consented to proceed
before the undersigned for all purposes. (Docket No. 47). This
Court held an evidentiary hearing on January 30, 2019, and
the parties submitted post-hearing briefs.
B. Factual Background
*2 Plaintiff alleges that on August 31, 2015 he was assaulted
by CO Cordero and CO Mayfield while his wife was visiting
him at Sing Sing. (Compl.; Tr. 110:11-14). CO Cordero filed
a misbehavior report against Plaintiff, and after a disciplinary
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Jenkins v. Cordero, Not Reported in Fed. Supp. (2019)
2019 WL 2121655
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hearing, Plaintiff was placed in the special housing unit
(“SHU”). 4 (Compl. Ex. A; Tr. 110:15-21). Plaintiff testified
that on September 2, 2015, while he was in the SHU, he
submitted a grievance related to the alleged assault. (Tr.
103:20-104:4, 112:2-10; Defs. Ex. 1). Plaintiff claims that
after he did not receive a response or a grievance number,
he submitted a second grievance on October 5, 2015. (Tr.
112:5-7; Defs. Ex. 1). Plaintiff testified that in both instances,
he submitted the grievances while in the SHU by handing his
grievances to the correction officer who came around with the
daily mailbox. (Tr. 111:7-112:18). At the evidentiary hearing,
Plaintiff did not know the identity of the correction officer he
gave his September 2, 2015 grievance to, but he described her
as a tall female correction officer whose name began with the
letter R. (Id. at 119:19-20; 115:24-116:8). Plaintiff could not
recall if the same correction officer picked up the grievance
on October 5, 2015, but he recalled giving his grievance to a
female correction officer. (Id. at 122:2-124:4).
4 Plaintiff appealed the results of his disciplinary
hearing, and the director of inmate disciplinary
programs reversed the disciplinary determinations
on February 13, 2017. (Compl. Ex. C).
Plaintiff was released from the SHU on November 10, 2015.
(Tr. 112:13-15). Upon his release, he asked inmate Vincent
Warren, the prison grievance representative, about the status
of his grievances. (Defs. Ex. 1). Mr. Warren told Plaintiff
that he remembered filing his grievance, but later informed
him that the grievance had not been filed. (Id.). According to
Plaintiff, on November 24, 2015, he spoke with the grievance
supervisor, Quandera Quick, who informed Plaintiff that his
grievances had not been received and the time to file them
had passed. (Id.). That same day Plaintiff submitted another
grievance concerning the procedures used for collecting
grievances and indicated that his grievances were not being
filed. (Id.).
At the evidentiary hearing, Ms. Quick explained that there
are two ways an inmate housed in the SHU can file a
grievance with the Inmate Grievance Resolution Committee
(“IGRC”). (Tr. 20:18-21). First, the inmate could “hand-
deliver the grievance to the Grievance Sergeant while he or
she makes rounds.” (Id.). Second, the inmate could “place [the
grievance] in the mailbox that's in the housing unit.” (Id.).
With respect to the second option, Ms. Quick explained that a
correction officer will bring the mailbox around to the entire
facility, including the SHU, and then bring the mailbox to the
mailroom, who in turn sends any grievances to the grievance
office. (Id. at 21:2-18). In this case, Plaintiff testified that he
used the second method of filing a grievance when he handed
his grievance to the correction officer assigned to general mail
collection in the SHU. (Id. at 111:7-112:18).
Ms. Quick explained that once the grievance office receives a
grievance, she processes it in accordance with Directive 4040.
(Tr. 15:6-9). Specifically, Ms. Quick reviews the grievance,
codes it based on the nature of the allegations, and then gives
it to the grievance clerk to assign a grievance number that is
entered into a computer database. (Id. at 15:9-16:7). Once a
grievance is given a number and entered into the database, it
is considered filed. (Id. at 16:6-8).
Ms. Quick testified that she had no recollection of receiving
or filing the subject grievances from Plaintiff. (Tr. 26:11-18).
She also reviewed the grievance office's database and
confirmed that Plaintiff's alleged grievances from September
2, 2015 and October 5, 2015 had not been filed. (Tr. 33:2-5;
Defs. Ex. 3). Ms. Quick did, however, receive Plaintiff's
November 24, 2015 grievance, in which he stated that his
grievances were not being filed. (Tr. 26:22-25; Defs. Ex.
1). Upon receiving Plaintiff's November 24, 2015 grievance,
Ms. Quick consulted with Mr. Warren about whether the
grievance office had received Plaintiff's prior grievances. (Tr.
29:14-30:2). On December 1, 2015, Mr. Warren wrote a letter
to Ms. Quick stating that he had never seen the grievances
Plaintiff was asking about. (Defs. Ex. 2). However, Mr.
Warren recanted the statement in his letter at the evidentiary
hearing and testified that he wrote that he had never seen
Plaintiff's grievance because he was afraid of being fired from
his position at the grievance office if he admitted that he saw
the grievance. (Tr. 67:18-68:3, 76:22-77:20).
*3 Inmate John Hale, who served as a grievance file clerk at
the time, also testified that he remembered seeing a grievance
concerning an assault that took place on the visit floor with
CO Cordero, but he could not remember if the grievance was
the November 24 grievance or the September 2 or October 5
grievances. (Tr. 100:7-102:8).
II. LEGAL STANDARDS
The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement
is “mandatory,” therefore “foreclosing judicial discretion.”
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Ross v. Blake, 136 S. Ct. 1850, 1857 (2016). “[P]roper
exhaustion ... means using all steps that the agency holds out,
and doing so properly (so that the agency addresses the issues
on the merits).” Hernandez v. Coffey, 582 F.3d 303, 305 (2d
Cir. 2009) (citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)).
“The exhaustion inquiry thus requires that we look at the state
prison procedures and the prisoner's grievance to determine
whether the prisoner has complied with those procedures.”
Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009).
In New York State, a prisoner must comply with the rules of
New York's Inmate Grievance Program (“IGP”). To exhaust
a claim, a prisoner must complete the following three steps:
(1) submit a complaint to the clerk of the facility's IGRC
within twenty-one days of the alleged incident; (2) appeal an
adverse decision to the superintendent of the facility within
seven days of receipt of the IGRC's written response; and
(3) appeal an unfavorable decision by the superintendent to
the Central Office Review Committee within seven days of
receipt of the superintendent's written response. 7 N.Y.C.R.R.
§ 701.5. A prisoner who has not received a response within
the prescribed timeframe may appeal to the next level. Id. §
701.6(g)(2).
Because Plaintiff's failure to exhaust administrative remedies
is an affirmative defense, Defendants bear the initial burden
of establishing that a grievance process existed and applied
to the alleged dispute. See Hubbs v. Suffolk Cnty. Sheriff's
Dep't, 788 F.3d 54, 59 (2d Cir. 2015). Defendants can meet
their burden by “pointing to ‘legally sufficient source[s]’
such as statutes, regulations or grievance procedures.” Id.
(quoting Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003)).
If Defendants satisfy their initial burden, the burden shifts
to Plaintiff to demonstrate “that other factors ... rendered
a nominally available procedure unavailable as a matter of
fact.” Id.
In Ross, the United States Supreme Court identified “three
kinds of circumstances in which an administrative remedy,
although officially on the books, is not capable of use to obtain
relief.” 136 S. Ct. at 1859. First, “an administrative procedure
is unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end—
with officers unable or consistently unwilling to provide any
relief to aggrieved inmates.” Id. Second, “an administrative
scheme might be so opaque that it becomes, practically
speaking, incapable of use.” Id. Third, an administrative
procedure is unavailable when “prison administrators thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 1860.
*4 Shortly after the Supreme Court's decision in Ross, the
Second Circuit elaborated upon the “opaqueness” exception
in Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016). In
Williams, an inmate housed in the SHU satisfied the PLRA's
exhaustion requirement when he handed a grievance to a
correction officer who then failed to file it. The Second
Circuit explained that “[o]n their face, the regulations only
contemplate appeals of grievances that were actually filed.”
Id. at 124. Because the plaintiff's grievance was not filed,
it was “practically impossible for him to ascertain whether
and how he could pursue his grievance.” Id. Therefore, the
Second Circuit concluded that “the regulatory scheme ...
[was] ‘so opaque’ and ‘so confusing’ that ... no reasonable
prisoner can use [it].’ ” Id. (quoting Ross, 136 S. Ct. at 1859).
Since Williams, numerous courts in this Circuit have followed
its reasoning when assessing the “inescapable quandary that
inmates find themselves in when their grievances are not
filed.” McRae v. Cordero, No. 15 Civ. 4334 (NSR)(PED),
2018 WL 3611964, at *6 (S.D.N.Y. July 26, 2018); see also
Ortiz v. Annucci, No. 17 Civ. 3620 (RJS), 2019 WL 1438006,
at *8 (S.D.N.Y. Mar. 29, 2019) (“If, in fact, Plaintiff timely
attempted to file his grievance by handing it to an officer while
in SHU and that officer failed to file the grievance, Plaintiff's
avenues for pursuing the grievance would be unavailable
under Williams, excusing him from any further exhaustion
requirements.”); Terry v. Hulse, No. 16 Civ. 252 (KMK), 2018
WL 4682784, at *9-10 (S.D.N.Y. Sept. 28, 2018); Jackson v.
Downstate Corr. Facility, No. 16 Civ. 267 (NSR), 2018 WL
3650136, at *8 (S.D.N.Y. July 31, 2018).
III. DISCUSSION
Defendants have met their initial burden of demonstrating that
a grievance process existed and applied to the instant dispute.
See 7 N.Y.C.R.R. § 701.5. The Court next addresses whether
that grievance process was unavailable to Plaintiff within the
meaning of the framework established by Ross.
Plaintiff argues that he has demonstrated the second Ross
unavailability exception, the “opaqueness” exception. (Pl.
Br. at 4). Plaintiff likens this case to Williams. He argues
that he attempted to timely file his grievance regarding the
August 31, 2015 incident while in the SHU by submitting
his grievance through Sing Sing's mail system, which entails
placing his grievance in the mailbox brought around by one
of the correction officers on duty. (Id.). Plaintiff maintains
that once he filed his grievance through Sing Sing's mailing
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system it was “out of [his] hands” and the regulations do
not describe a mechanism for appealing an unfiled grievance.
(Id.).
The regulations analyzed by the Second Circuit in Williams
are the same regulations as the ones here. 829 F.3d at 125-26
(citing 7 N.Y.C.R.R. §§ 701.5, 701.6, 701.8). Defendants do
not contest the applicability of the Williams analysis to the
instant case. Instead, they maintain that Plaintiff failed to
complete any step of the grievance process and challenge his
claim that he timely attempted to file a grievance while housed
in the SHU. (Defs. Br. at 8-11). Defendants question Plaintiff's
credibility, noting (1) Plaintiff had no issue filing other
grievances while in the SHU; (2) Plaintiff did not explain
why he inquired about the status of a separate grievance while
failing to mention the September 2 and October 5 grievances;
and (3) Plaintiff failed to adequately explain why he did not
have copies of the grievances in question. (Defs. Br. at 10-11).
The pertinent factual issues that this Court must decide under
Williams are whether Plaintiff attempted to file his grievance
in the prescribed time and manner, and whether his grievances
nonetheless remained unfiled.
A. Plaintiff Attempted to File His Grievance Using the
Proper Administrative Procedures
Plaintiff was initially required to submit a grievance to IGRC
within twenty-one days of the August 31, 2015 incident. The
Court credits Plaintiff's testimony that he attempted to file
a grievance while in the SHU within the twenty-one-day
period for several reasons. Plaintiff gave specific details about
how on September 2, 2015, he handed the grievance to the
correction officer who came around with the mailbox and
did so again on October 5, 2015 when he did not receive a
grievance number. Plaintiff's account was consistent with Ms.
Quick's description of the procedure for filing a grievance
from within the SHU. The Court bases its credibility
determination in part on Plaintiff's demeanor, body language
and tone of voice during his testimony. Other facts in the
record further support a finding that Plaintiff attempted to file
his grievance within the mandated timeframe. For example,
once Plaintiff was released from the SHU, he immediately
followed up with the inmate grievance representative about
the status of his grievances, and he then raised his prior
grievances with the civilian grievance supervisor to see if
they were ever filed. Furthermore, Plaintiff's testimony that
he handed his grievance to the correction officer on mail duty
remained unrebutted. For example, CO Maribel Lopez, the
correction officer Defendants called to testify that Plaintiff
did not attempt to mail a grievance while in the SHU, could
not recall if she was the correction officer assigned to mail
collection on the dates in question. (Tr. 57:1-11; 58:3-4).
*5 The evidence cited by Defendants that Plaintiff failed
to exhaust his administrative remedies does not undermine
Plaintiff's testimony. First, the evidence that Plaintiff filed
other grievances while in the SHU shows that Plaintiff knew
how to competently follow the correct grievance procedures
available to him. See Ortiz, 2019 WL 1438006, at *9 (“If
anything, Plaintiff's understanding of how the IGP process
functions in the ordinary course bolsters the inference that
the usual process did not unfold in this circumstance by
suggesting that the filing failure did not result from Plaintiff's
own ineptitude.”).
Second, Defendants argue that Plaintiff's credibility is
undermined by the fact that he filed a written complaint when
he did not receive a grievance number in connection with
a separate grievance regarding the Family Reunion Program
(“FRP”), (Defs. Ex. 6), but he did not file a similar complaint
with respect to the September 2 and October 5 grievances.
(Defs. Br. at 10). The Court showed Plaintiff Defendants'
Exhibit 6 and asked him why he requested a number for
the FRP grievance but did not include the September 2
grievance in his request. (Tr. 108:9-109:17). Plaintiff testified
that he specifically requested a number for the FRP grievance
because he was preparing for a hearing regarding the FRP
incident. (Id.). However, he did not think of requesting a
number for the September 2 grievance at that time. (Id.). In
any event, Plaintiff submitted written complaints regarding
his September 2 grievance once he learned it had not been
filed, and he promptly spoke with members of the grievance
office in person once he was released from the SHU. (See
Defs. Exs. 1, 4).
Third, Defendants maintain that Plaintiff does not offer a
sufficient explanation for why he does not have copies of
the September 2 and October 5 grievances. (Defs. Br. at
11). However, the Court credits Plaintiff's explanation that
he typically keeps copies of his grievances, but his property
bag was lost during transit and he no longer has any of his
paperwork. (Tr. 10:4-7; 125:8-12).
Accordingly, based on Plaintiff's credible testimony, the Court
finds that Plaintiff attempted to timely file his grievance
relating to the August 31, 2015 incident in accordance with
proper administrative procedures.
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B. Plaintiff's Grievance Was Never Filed
The evidence demonstrates that Plaintiff's grievances were
not filed, even though he mailed his grievances in accordance
with the IGP. Plaintiff did not know why his grievances
were not filed, but once he mailed them, they were within
DOCCS' possession and out of Plaintiff's control. 5 In such
circumstances, the grievance process became unavailable
to Plaintiff, thereby excusing him from pursuing further
exhaustion requirements. See Curtis v. Bola, No. 15 Civ. 718
(GLS)(TWD), 2017 WL 6767392, at *13 (N.D.N.Y. Nov.
28, 2017), report and recommendation adopted by, No. 15
Civ. 718 (GLS)(TWD), 2018 WL 278673 (N.D.N.Y. Jan.
3, 2018) (the PLRA did not bar plaintiff's claims where he
mailed his grievance in accordance with the IGP “and for
reasons unknown to him and through no fault of his own,
those [grievances] did not end up in the IGP files.”).
5 At the evidentiary hearing, Mr. Warren testified
that Ms. Quick, the civilian grievance supervisor,
tampered with grievances and prevented certain
grievances from being filed. (Tr. 66:24-67:17).
Such actions, if they took place, would certainly
render the grievance process unavailable to
Plaintiff under both the second and third
unavailability exceptions. Defendants spend a
significant portion of their post-trial brief
challenging Mr. Warren's testimony. There is
insufficient evidence for the Court to make a
factual finding that Plaintiff's grievances were
intentionally destroyed. However, intent is not a
requirement under the “opaqueness” unavailability
exception enunciated by Williams. Thus, the
absence of evidence that Plaintiff's grievances
were willfully destroyed by a prison administrator
does not defeat Plaintiff's claim that the grievance
process was unavailable to him.
IV. CONCLUSION
*6 For the foregoing reasons, the Court finds that Plaintiff
has met the PLRA's exhaustion requirement, and dismissal of
his claim is not warranted. The Court schedules a Pre-Trial
Conference for June 20, 2019 at 10:00 a.m. in Courtroom
421 in the United States Courthouse, 300 Quarropas Street,
White Plains, New York 10601. Due to pro se Plaintiff's
incarceration, Defendants are directed to arrange Plaintiff's
telephonic participation at the aforementioned time and date.
The Clerk of Court is directed to mail a copy of this order to
the pro se Plaintiff.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 2121655
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Jenkins v. Cordero
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 7:17-CV-01592
Jenkins v. Cordero et al
— S.D.N.Y. Mar. 02, 2017 Docket
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Jenkins v. Cordero
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History (2)
Direct History (1)
1. Jenkins v. Cordero
2019 WL 2121655 , S.D.N.Y. , May 15, 2019
Related References (1)
2. Jenkins v. Cordero
2018 WL 456311 , S.D.N.Y. , Jan. 17, 2018
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Jenkins v. Cordero
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Rucano v. Annucci, Not Reported in Fed. Supp. (2021)
2021 WL 3293504
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 3293504
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Anthony RUCANO, Plaintiff,
v.
Anthony ANNUCCI, et al., Defendants.
No. 9:18-CV-218 (GTS/CFH)
|
Signed 05/19/2021
Attorneys and Law Firms
Anthony Rucano, Plaintiff pro se.
MATTHEW D. WAGONER, ESQ., The Wagoner Firm
PLLC, 150 State Street, Suite 504, Albany, New York
12207, Attorneys for defendants, D. Venettozzi, A Rodriguez,
Michael Kirkpatrick, D. Uhler, Lt. Durkin, R. Bishop, P.
Devlin, G.T. King, J. Breyette, C.O. Tucker.
VINCENT M. MIRANDA, ESQ., JAMES PETER BLENK,
ESQ., Lippes Mathias Wexler Friedman LLP, 50 Fountain
Plaza, Suite 1700, Buffalo, New York 14202, Attorneys for
defendant J. Kowalowski.
REPORT-RECOMMENDATION AND ORDER 1
1 This matter was referred to the undersigned for
Report-Recommendation and Order pursuant to 28
U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Anthony Rucano (“plaintiff”),
who was, at all relevant times, in the custody of
the New York State Department of Corrections and
Community Supervision (“DOCCS”), brings this action
pursuant to 42 U.S.C. § 1983, alleging that defendants,
DOCCS Director of Special Housing/Inmate Disciplinary
Program, Donald Venettozzi (“Venettozzi”); DOCCS Acting
Director of Special Housing/Inmate Disciplinary Program,
Anthony Rodriguez (“Rodriguez”); Superintendent of
Clinton Correctional Facility (“Clinton C.F.”), Michael
Kirkpatrick (“Supt. Kirkpatrick”); Superintendent of Upstate
Correctional Facility (“Upstate C.F.”), Donald Uhler (“Supt.
Uhler”); Clinton C.F. correctional lieutenant (“Lt.”), Charles
Durkin (“Lt. Durkin”); Clinton C.F. correction captain
(“Capt.”), Reginald Bishop (“Capt. Bishop”); Clinton C.F.
correction captain, Patrick Devlin (“Capt. Devlin”); Clinton
C.F. correction sergeant (“Sgt.”), Gregory T. King (“Sgt.
King”); Clinton C.F. correction officer (“C.O.”), Jamie
Breyette (“C.O. Breyette”); Clinton C.F. correction officer,
Cory Tucker (“C.O. Tucker”)—who, at all relevant times
were employed by DOCCS—and Clinton C.F. Recreation
Program Leader II, J. Kowalowski (“Kowalowski”)—a
civilian civil service employee—violated his constitutional
rights under the First Amendment. See Dkt. No. 25 (“Amen.
Compl.”). 2
2 Following initial review of plaintiff's Amended
Complaint pursuant to 28 U.S.C. § 1915(e)(2)
(B), Chief U.S. District Court Judge Glenn T.
Suddaby, in a Decision and Order dated October 25,
2018, (1) accepted plaintiff's Amended Complaint
for filing only to the extent that it asserted
(a) First Amendment retaliation and conspiracy
claim against Capt. Bishop, Lt. Durkin, Sgt. King,
Supt. Kirkpatrick, Rodriguez, and Kowalowski;
and (b) First Amendment retaliation, Fourteenth
Amendment due process, and conspiracy claims
against Capt. Bishop, C.O. Breyette, Capt. Devlin,
Supt. Kirkpatrick, Supt. Uhler, C.O. Tucker,
Rodriguez, and Venettozzi; and (2) dismissed,
without prejudice, the remaining claims asserted
in plaintiff's Amended Complaint. Dkt. No. 35
at 18. The Court subsequently denied plaintiff's
motion for reconsideration of the October 25, 2018
Decision and Order. See Dkt. Nos. 36, 48. Further,
in a Decision and Order dated September 27, 2019,
as relevant here, the Court denied plaintiff's motion
for leave to file a second amended complaint, see
Dkt. No. 87, and Ordered that plaintiff's Amended
Complaint (Dkt. No. 25) remains the operative
pleading. See Dkt. No. 106.
Presently pending before the Court is (1) the motion
for summary judgment pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 56 filed by Venettozzi,
Rodriguez, Supt. Kirkpatrick, Supt. Uhler, Capt. Bishop,
Capt. Devlin, Sgt. King, C.O. Breyette, C.O. Tucker
(collectively, where appropriate, “defendants”), see Dkt. No.
178; and (2) the separate motion for summary judgment
pursuant to Fed. R. Civ. P. 56 filed by Kowalowski, see
Dkt. No. 179. Plaintiff filed a response in opposition to
defendants’ motion, see Dkt. No. 193, and filed a separate
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response in opposition to Kowalowski's motion, see Dkt.
No. 194. Defendants filed a reply to plaintiff's response
opposition of their motion, see Dkt. No. 195, and Kowalowski
filed a separate reply to plaintiff's response in opposition
to his motion, see Dkt. No. 196. For the reasons that
follow, it is recommended that defendants’ motion for
summary judgment (Dkt. No. 178) be granted in its entirety,
Kowalowski's motion for summary judgment (Dkt. No. 179)
be granted in its entirety, and plaintiff's Amended Complaint
(Dkt. No. 25) be dismissed with prejudice in its entirety.
I. Background
A. Plaintiff's Factual Assertions and Claims 3
3 To the extent that plaintiff's exhibits are relevant
to the causes of action at issue on the present
motion, the Court will consider them as part of the
Amended Complaint. See Sira v. Morton, 380 F.3d
57, 67 (2d Cir. 2004) (“A complaint is deemed to
include any written instrument attached to it as an
exhibit, materials incorporated in it by reference,
and documents that, although not incorporated by
reference, are integral to the complaint.” (internal
quotation marks and citations omitted)).
1. February 2016 Disciplinary Proceeding
*2 The facts are reviewed in the light most favorable to
plaintiff as the non-moving party. See subsection II.A., infra.
In November 2015, while incarcerated at Clinton C.F.,
plaintiff was elected as the new Secretary of the Inmate
Liaison Committee (“ILC”). See Amen. Compl. at 12 ¶ 43.
In this role, plaintiff “was in charge of maintaining financial
records, ILC agendas and other ILC related paperwork.” Id.
Plaintiff states that, at “the ILC's first meeting with ILC Staff
Advisor [ ]Kowalowski in November of 2015, [Kowalowski]
issued the ILC members a warning, ‘You all have a target on
your back, be careful!” Id. at ¶ 44.
Plaintiff alleges that his “first act” as ILC Secretary “was
to address problems with the inmate population receiving
showers per [DOCCS] Directive # 4009.” Amen. Compl. at
13 ¶ 48. Plaintiff drafted a memorandum, dated December 9,
2015 (“the December 9, 2015 memorandum”), in which he
addressed the issues concerning Clinton C.F.’s inmate shower
policy and his proposed solutions. See id. Plaintiff sent the
December 9, 2015 memorandum to, among others, New
York State Assemblyman Daniel O'Donnell. See id. at 13-14
at ¶ 48; Dkt. No. 25-1 at 85-88. Following the December
2015 ILC meeting, plaintiff sent a similar, but more detailed,
proposal to Clinton C.F. executive staff. See id. at 14 ¶¶ 50,
51.
On December 16, 2015, plaintiff submitted a proposed
ILC agenda, which outlined “five assaults on inmates by
staff, violations of [DOCCS] Directive # 4803 (inappropriate
removal from job), Directive # 2771 ([failure of the Clinton
C.F. accountant to reconcile deposits from inmate fundraiser
sales]), and the request to review and implement one of
the various proposed solutions ... to address the problems
concerning inmate showers.” Amen. Compl. at 14 ¶ 54
(internal citations omitted); see id. 10 ¶ 33. Plaintiff alleges
that, “[a]t the next weekly ILC meeting[,] Kowalowski told
[him]” that “ ‘[i]f [he] submitted this [a]genda [plaintiff]
would go to Upstate Box for 270 days[.]” Id. at 15 ¶ 55.
Based on the “angry tone of [Kowalowski's] voice[,]” plaintiff
perceived “this as a threat, and was coerced to submit a
‘watered down’ ILC [a]genda ....” Id. Plaintiff submits both
versions of the proposed December 2015 agenda, the first
of which, dated December 16, 2015, is five pages long,
and raises the above-mentioned issues. See Dkt. No. 25-1 at
115-19. The second version of the agenda, dated December
23, 2015, is a one-page document that omits the complaints
of assaults by staff, but includes condensed versions of the
remaining issues raised in the originally proposed agenda. See
id. at 121.
At the January 6, 2016 ILC meeting, “Kowalowski violently
snatched a piece of paper out of [plaintiff's] hand which
listed ... new proposed TV channels,” and stated, “I took it, so
what. You are not as important as you think you are.” Amen.
Compl. at 15 ¶ 56. On January 11, 2016, plaintiff wrote a
letter to New York State Assemblyman Daniel J. O'Donnell
in which he explained “the ILC Agenda [he] submitted and
the abusive treatment [he] was subjected to by [ ]Kowalowski
since then[,]” and that he “feared retaliation because Clinton
is known throughout the State, weapon thrown in your cell,
imaginary assault on staff charges, etc.” Id. at ¶ 57 (citing
Dkt. No. 25-1 at 123). Plaintiff further states that, in his role
as Facility Media Review Committee (“FMRC”) co-chair,
Kowalowski “made numerous disputed rulings on some [of
plaintiff's] adult magazines ..., which [plaintiff] appealed to”
to Central Office Media Review Committee (“COMRC”).
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Id. at 16 ¶ 59. On January 15, 2016, Director of Education
Linda Hollmen (“Hollmen”) responded to a series of three
letters dated December 16, 17, and 23, 2015, relating to
plaintiff's COMRC appeal. See id. at ¶ 60; Dkt. No. 25-1 at
147. Hollmen explained that the COMRC determined that the
two editions of Cheri magazine at issue contained models that
“may be portrayed as being under age, appealing to a prurient
interest and therefore may promote the sexual performance of
a minor.” Dkt. No. 25-1 at 147.
*3 In a letter dated January 23, 2016, plaintiff responded
to Hollmen's January 15, 2016 letter, and “using the same
[ ]DOCCS letterhead [he] had been using for over a year (with
law library Supervisor Officer Tedfords knowledge), ... asked
for the ILC Supervisors [sic] name in Albany.” Amen. Compl.
at 16 ¶ 60. On January 29, 2016, plaintiff “sent [ ]Kowalowski
a copy [of this letter] via internal mail.” Id. Plaintiff alleges
that, within “a few hours after mailing [a copy of his letter]
to [ ]Kowalowski, [Kowalowski] went to the Captains [sic]
Office with a copy of the letter that he had just received
and, upon information and belief, spoke to Capt. Bishop.”
Id. at ¶ 61. Plaintiff contends that Kowalowski and Capt.
Bishop “conspired to cover-up embezzlement of ... ILC funds
and other improprieties revealed in the December [ ] 2015
Agenda.” Id. Moreover, plaintiff avers, “[i]n furtherance of
this conspiracy, Capt. Bishop directed Sgt. King to write
[plaintiff] a false [misbehavior report] for forgery” for using
DOCCS letter head on the letter he addressed to the COMRC.
Id.
On January 29, 2016, Sgt. King issued plaintiff a misbehavior
report (“the January 29, 2016 misbehavior report”), charging
plaintiff with violations of five DOCCS rules, including
that plaintiff “forged letterhead depicting a state form from
[DOCCS] ... that he had created ... on a computer in
the law library[,]” which he used in “a letter of personal
nature ....” Dkt. No. 25-1 at 155. Plaintiff avers that
“Kowalowski [i]nitiat[ed] [r]etaliation – The January 29[ ],
2016” misbehavior report. Amen. Compl. at 16. Plaintiff
states that he was placed on keeplock status pending his
disciplinary hearing. See id. at 17 ¶ 62.
Plaintiff's Tier III disciplinary hearing relating to the January
29, 2016 misbehavior report began on February 4, 2016 (“the
February 2016 disciplinary hearing”). See Amen. Compl.
at 17 ¶ 64. Plaintiff states that the “regularly assigned Tier
III Hearing Officer,” non-party Lt. Miller, did not preside
over his case, but rather, Supt. Kirkpatrick “designated” Lt.
Durkin to preside over his Tier III hearing. Id. Plaintiff
alleges that Lt. Durkin did not normally preside over such
hearings and that he “was unfamiliar with the procedures
and stopped frequently to read from instructions on how
to hold the hearing.” Id. Plaintiff contends that “[t]hese
circumstances let [him] know that [he] was about to be
railroaded and revealed an ongoing conspiracy now involving
Supt. Kirkpatrick[,] Lt. Durkin ..., and Capt. Bishop ... to
insure a finding of guilt regardless of the facts.” Id. (internal
quotation marks omitted). Plaintiff alleges that, “off-the-
record and before the hearing, [Lt. Durkin] agree[d] the
[January 29, 2016 misbehavior report wa]s problematic.” Id.
at 18 ¶ 65. On February 5, 2016, “[t]he day after the hearing
started[,]” plaintiff states that Kowalowski visited his cell
“because ... Lt. Durkin[ ] told him that [plaintiff] accused him
of threatening [plaintiff] with retaliation.” Id. at ¶ 66. Plaintiff
avers that, during this meeting, “Kowalowski told [him that]
if [he] had come to the ILC meeting at 10 AM on January
29[ ], 2016, hours before [plaintiff] received the [January 29,
2016 misbehavior report], he would have ‘squashed’ th[at
misbehavior report].” Id.
Plaintiff alleges that, on the last day of the hearing, his “boss
[at the Clinton C.F. law library], [non-party] Officer Tedford,
testified that he was aware [that plaintiff] was using [DOCCS]
letterhead and had no problem with [him doing] as long
as it was being used for communication with [ ]DOCCS
employees.” Id. at 19 ¶ 70. At the conclusion of the hearing on
February 11, 2016, “despite ... Tedford[’s] testi[mony]” and
plaintiff's “non-existent disciplinary history [for his] entire
incarceration,” he was found guilty and sentence to 90 days
in the Clinton C.F. Special Housing Unit (“SHU”). Id. at ¶
71. On February 15, 2016, plaintiff administratively appealed
Lt. Durkin's disciplinary determination. See id. at 20 ¶ 72;
Dkt. No. 25-1 at 168-70. On March 15, 2016, Rodriguez
reduced plaintiff's sanction to 45 days of SHU confinement
and loss of packages, commissary, and phone. See id. at
21 ¶ 77; Dkt. No. 25-1 at 176. Plaintiff submitted a letter
requesting reconsideration of his administrative appeal on
March 16, 2016. See Dkt. No. 25-1 at 178-79. On April 6,
2016, Rodriguez reversed Lt. Durkin's February 11, 2016
disciplinary determination. See Amen. Compl. at 21 ¶ 78;
Dkt. No. 25-1 at 181.
*4 Liberally construed, the Amended Complaint alleges
that, based on the facts relating to the February 2016
disciplinary hearing, Kowalowski, Capt. Bishop, Sgt. King,
Supt. Kirkpatrick, Lt. Durkin, and Rodriguez conspired to
violate plaintiff's First Amendment rights by filing a false
misbehavior report that resulted in SHU confinement in
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retaliation for plaintiff engaging in protected conduct relating
to his service as ILC Secretary. See Amen. Compl. at 12-21,
69.
2. March 2016 Disciplinary Proceeding
On February 18, 2016, plaintiff filed an inmate grievance
(CL-68902-16), alleging that he had been issued a false
misbehavior report (the January 29, 2016 misbehavior report)
in retaliation for his January 23, 2016 letter to Hollmen
in which he requested the name of the ILC advisor in the
Albany office. See Amen. Compl. at 20 ¶ 73; Dkt. No.
25-1 at 4-6. In particular, plaintiff requested that the Inmate
Grievance Program (“IGP”) “review and investigate the facts
and circumstances of [his] grievance in conjunction with
[the January 29, 2016] misbehavior report; reverse, dismiss
and expunge ticket from [his] record, and restore [him] to
[his] law library job and housing area.” Dkt. No. 25-1 at 6.
Plaintiff alleges that non-party IGP Supervisor Gregory filed
his grievance incorrectly ....” Id. The Clinton C.F. Inmate
Grievance Resolution Committee (“IGRC”) denied plaintiff's
grievance, explaining, as relevant here, that “[t]he grievance
program can not be used as an additional substitute appeal
mechanism. An individual decision or disposition resulting
from a disciplinary proceeding is not grievable.” Id. at 7.
Plaintiff appealed the IGRC's response to the Superintendent
on March 4, 2016. See id. On March 11, 2016, Supt.
Kirkpatrick concurred with the IGRC's response. See id. at
8. On March 21, 2016, plaintiff appealed Supt. Kirkpatrick's
decision. See id. On July 6, 2016, the Central Office Review
Committee (“CORC”) upheld Kirkpatrick's determination.
See id. at 9.
On February 28, 2016, C.O. Breyette and C.O. Tucker came
to plaintiff's cell in Clinton C.F.’s keeplock block to inform
plaintiff that he was being transferred to Upstate C.F. and to
pack up his belongings. See Amen. Compl. at 20 ¶ 74, 21
¶ 79. Plaintiff “requested to see OMH when [he] was told
[he] was being packed up on the draft to [Upstate C.F.].”
Id. at ¶ 74. 4 Plaintiff states that, while C.O. Breyette and
C.O. Tucker packed his belongings outside of his presence
when he was in OMH, “an ice pick was allegedly recovered
on the inside ledge of [his] cell above the bars.” Id. at 21 ¶
80. Plaintiff alleges that the ice pick was “planted in [his]
cell ....” Id. at 20 ¶ 74. Capt. Bishop signed off on an unusual
incident report (“UIR”) concerning the weapon. See id. at 22
¶ 84; see Dkt. No. 25-2 at 9-11 (Mar. 1, 2016 UIR, listing
incident date for the discovery of the ice pick in plaintiff's
cell as Feb. 28, 2016). Plaintiff has included, as an exhibit,
the photograph, of the ice pick, which is dated February 29,
2016. See Dkt. No. 25-2 at 12. “On the morning of February
29[ ], 2016, while still in an OMH [o]bservation cell,” plaintiff
alleges that “Capt[.] Devlin, the security captain in charge
of the secure evidence locker and logbooks, banged hard
on [plainitff's] cell and said ‘What the [f]uck are you still
doing here?” to which plaintiff replied, “Why did I get 90
days, the maximum sentence for my first non-violent Tier III
[misbehavior report]?” Id. at ¶ 75. Plaintiff alleges that, “[a]s
[Capt. Devlin] was walking away[,] he said ‘You'll see.’ ” Id.
4 Plaintiff's use of the acronym “OMH” refers to the
Office of Mental Health.
*5 On March 1, 2016, plaintiff was transferred from Clinton
C.F. to Upstate C.F. and placed in SHU. See Amen. Compl.
at 21 ¶ 80. On March 2, 2016, plaintiff received an inmate
misbehavior report authored by C.O. Breyette, dated February
28, 2016 (“the February 2016 misbehavior report”), which
charged him with possession of a weapon in violation of
DOCCS Rule 113.10 based on the discovery of the ice pick in
plaintiff's keeplock cell at Clinton C.F. See id. at 20 ¶ 74; Dkt.
No. 25-2 at 7. Over the course of March 4, 22, and 29, 2016, a
Tier III disciplinary hearing was held at Upstate C.F. relating
to the February 2016 misbehavior report. See id. at 22 ¶ 82.
Plaintiff alleges that Capt. Bishop “conspired with [Supt.]
Ulher of [Upstate C.F.], a former [c]aptain of [s]ecurity at
[Clinton C.F.] in 2008[,] to be assigned as the hearing officer
at [Upstate C.F.] to hold [the] hearing, even though [Upstate
C.F.] employs a full-time ... Hearing Officer whose only job
is to hold hearings.” Id. Plaintiff further contends that “[t]his
conspiracy involved insuring [sic] that [he] was found guilty
of possessing the weapon planted in [his] cell in a continuing
course of retaliation for [his] protected free speech conduct
as a duly elected ILC representative,” including reporting
alleged wrongdoing by personnel at Clinton C.F. Id. at ¶ 83.
Plaintiff alleges that, on March 22, 2016, he “requested the E-
Block (Unit) log book entries from 9:00 a.m. on February 28,
2016, until 5:00 p.m., on March 1, 2016, multiple times ... and
was told” by Capt. Bishop that he would be given “a copy of
the ... log for the incident entry in the log book” but that the
entries for “[t]he 29 th ... and March 1 st , [were] irrelevant ...
[.]” Amen. Compl. at 23 ¶ 87 (quoting Dkt. No. 25-2 at 41-42).
Plaintiff “objected” to this answer, stating that “there wasn't
a weapon found in my cell that day[,]” February 28, 2016.
Id. Over plaintiff's objection, Capt. Bishop instructed plaintiff
that the log book entries from February 28, 2016, were “... all
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you get. That's all you're getting.’ ” Id. at 24 ¶ 89 (quoting
Dkt. No. 25-2 at 44). Plaintiff also contends that Capt. Bishop
told him, “I'm going to get you when the evidence was booked
into evidence. That's what you're getting. Not getting the days
before or the days after of any of it.” Id. at 25 ¶ 95 (quoting
Dkt. No. 25-2 at 56). Plaintiff “objected, stating ‘I feel this
evidence wasn't logged in on February 28, 2016, and without
seeing the previous ... and the forward pages, I won't be able to
identify whether or not it was logged in at the time. Specially
[sic] since [ ] the evidence drop box log book [ ] doesn't have
a date [ ] when the evidence was entered into the drop box ....’
” id. at 24 ¶ 90 (quoting Dkt. No. 25-2 at 44-45). Plaintiff
states that he was “asked if [he] ha[d] the chain of custody
from the evidence drop box logbooks,” to which he replied,
“ ‘No.... The log book is missing a date that's supposed to be
there for weapons entered into the ... drop box log book[,]’
” and contends that this missing date “explained multiple
inconsistencies showing [his] request [wa]s very relevant and
material.” Id. at ¶ 91 (quoting Dkt. No. 25-2 at 45).
Plaintiff further alleges that C.O. Tucker testified at the
hearing by phone, and stated that C.O. Breyette had shown
him the weapon recovered from plaintiff's cell on February
29, 2016, “but [that] [Capt. Bishop] refused to allow
[plaintiff] to question C.O. Tucker about brining [plaintiff] an
I-64 form (recording property packed up) to Mental Health
Unit on February 29, 2016.” Amen. Compl. at 25 ¶ 94 (citing
Dkt. No. 25-2 at 52-54). Plaintiff further states that non-party
Sgt. Baker testified by phone that he wrote a memorandum to
non-party Lt. Menard “on the day of the incident, identified
on the memo as February 29, 2016, not February 28, 2016,
the date of the [misbehavior report].” Amen. Compl. at 24
¶ 92. When plaintiff “questioned” this inconsistency, “Capt.
Bishop stated, ‘we'll look at that to see if it's a clerical error
or not,’ ” but plaintiff avers that “no effort [wa]s made to
question Sgt. Baker while he [wa]s still on the phone.” Id.
(quoting Dkt. No. 25-2 at 50). However, plaintiff states that
he asked Sgt. Baker, “[d]id you drop the ... weapon in the box
the same date that you ... wrote the memo?” to which Sgt.
Baker replied, “ ‘It was on the same day.’ ” Id. at 24-25 ¶ 93
(quoting Dkt. No. 25-2 at 51). When Sgt. Baker testified again
later in the proceeding, Capt. Bishop prevented plaintiff from
eliciting an answer from Sgt. Baker as to whether he had ever
“ ‘secured evidence in the drop box in previous times[,]’ ” or
if he “ ‘kn[e]w what [he was] supposed to do in the evidence
drop box sign in sheet when [he] secure[d] evidence.’ ” Id. at
26 ¶¶ 99, 100 (quoting Dkt. No. 25-2 73-74). Capt. Bishop
then asked Sgt. Baker if he had “secure[d]” the weapon “on
[February 28,] 2016[,] in the evidence drop box[,]” to which
Sgt. Baker replied, “Yes I did.” Id. at ¶ 101 (quoting Dkt. No.
25-2 at 75).
*6 Plaintiff alleges that Capt. Bishop's evidentiary rulings
prevented him “from acquiring documents crucial to [his]
retaliation defense,” Amen. Compl. at 24 ¶ 91, and that he
“was stopped from making a complete record.” Id. at 23 ¶ 86
(citing Dkt. No. 25-2 at 42). In addition, plaintiff states that
“[Capt.] Devlin ... failed to move the alleged weapon from ...
the Evidence Drop Box to ... the Secured Evidence Locker for
eight days, when the Directive requires it to be moved within
72 hours.” Id. at 27 ¶ 103. Plaintiff posits that “[t]his lends
further support to the fact that these log book entries, along
with the [misbehavior report], were falsified and fabricated in
retaliation against [him].” Id. Based on the foregoing, plaintiff
contends that, on “February 29[ ], 2016, [ ]Capt[.] Devlin
conspired with Capt. Bishop to fabricate the [February 28,
2016 misbehavior report], which is supported by the picture
of the weapon ... recorded in the [UIR] as being photographed
on February 28[ ], 2016, but was recorded by [non-party] C.O.
Stiles as being photographed on February 29[,] 2016.” Id. at
23 ¶ 87 (citing Dkt. No. 25-2 at 12).
On March 29, 2016, plaintiff was found guilty of possession
a weapon and sanctioned to 120 days in SHU with 30 days
suspended and four months loss of good time credit. See
Amen. Compl. at 28; Dkt. No. 25-2 at 110. On April 11, 2016,
plaintiff appealed Capt. Bishop's disciplinary determination.
See id. at 32 ¶ 132; Dkt. No. 25-2 at 117-23. On June
13, 2016, Venettozzi modified Capt. Bishop's disciplinary
determination, reducing plaintiff's sanctions to 90 days in
SHU and expunged the four months of loss of good time
credit. See id. at 34 ¶ 138; Dkt. No. 25-2 at 148. On August
15, 2016, plaintiff commenced a proceeding pursuant to N.Y.
C.P.L.R. article 78 challenging the March 29, 2016 Tier
III hearing determination in New York State court. See id.
at 40-41 ¶¶ 164, 166; Dkt. No. 25-3 at 4-6. On July 10,
2017, after both parties had submitted briefs state court,
Rodriguez 5 administratively reversed and expunged Capt.
Bishop's March 29, 2016 Tier III hearing determination on
the basis that “circumstances surrounding the incident raise
question to inmate's culpability.” Dkt. No. 25-3 at 40; see id.
at 41; Amen. Compl. at 42 ¶ 173.
5 Although Venettozzi's name appears on the
document reversing and expunging the March
2016 disciplinary determination, see Dkt. No.
25-3 at 40, Rodriguez is the person that actually
made the determination to reverse and expunge
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plaintiff's disciplinary sentence and Venetozzi's
name is contained on the document based on
internal DOCCS policy. See Dkt. No. 195-17
at 1 (Rodriguez's affidavit in further support of
motion for summary judgment, explaining that,
Venettozzi's name appears on the July 10, 2017
decision “because, whenever he's in the office, all
correspondence goes out in his name.”).
Liberally construed, the Amended Complaint alleges that
Capt. Bishop, C.O. Breyette, C.O. Tucker, Capt. Devlin,
Supt. Kirkpatrick, Supt. Uhler, Rodriguez, and Venettozzi
conspired to retaliate against plaintiff in violation of his
First Amendment rights by filing a false misbehavior report
and brining a disciplinary proceeding against him, which
resulted in SHU confinement and loss of privileges, for his
protected conduct relating to his service as ILC Secretary.
See Amen. Compl. at 20-42, 70. Further, plaintiff alleges that
Capt. Bishop violated his Fourteenth Amendment procedural
due process rights by depriving him of an impartial hearing
officer, and denying him documentary and testimonial
evidence, which prevented plaintiff from mounting a full
defense. See id. at 24-27, 70.
II. Present Motions
A. Arguments and Evidence in Support of Defendants’
Motion for Summary Judgment (Dkt. No. 178)
1. First Amendment Retaliation
Claims—Both Disciplinary Hearings
Defendants aver that plaintiff's First Amendment retaliation
claims must fail “because there is no direct evidence of
retaliatory motive.” Dkt. No. 178-2 at 17. In particular,
defendants posit, no causal connection exists between
defendants’ actions of issuing plaintiff misbehavior reports,
conducting disciplinary hearings, or the resulting sanctions
and plaintiff's constitutionally protected activities relating
to his service on the ILC. See id. Defendants contend that
plaintiff's “conclusory allegations to the contrary cannot
raise a genuine factual dispute.” See id. Rather, defendants
argue, the issuance of misbehavior reports and the resulting
disciplinary hearings and sanctions were done in furtherance
of defendants’ job duties and to “ensure that DOCCS policies
were followed and [to] ensure the safety of the officers and
inmates.” Id. at 18. To the extent that DOCCS policies were
not followed, defendants state, “these errors were harmless
and did not violate the Constitution.” Id. at n. 8. Moreover,
defendants contend, plaintiff cannot establish that Lt. Durkin,
C.O. Tucker, C.O. Breyette, and Supt. Uhler acted with
retaliatory animus, because those defendants “did not even
know that [plaintiff] was a member of the ILC.” Id.; see Dkt.
No. 178-7 at 1 ¶ 4 (Sworn affidavit of Lt. Durkin stating,
that “I was not aware that [plaintiff] served on the ILC and
did not know of any activities he engaged in as a part of that
involvement until the hearing on February 4, 2016, .... Nor
did I ever discuss [plaintiff's] involvement in the ILC with any
other [d]efendant.”); Dkt. No. 178-10 at 1 ¶ 3 (Sworn affidavit
of C.O. Tucker, stating that, “[a]t the time of the events in
question, I did not know that [plaintiff] was a member of
the [ILC]. Nor did I know [plaintiff] had written letters or
agendas with regard to activities on ILC, or engaged in any
other constitutionally protected activities.”); Dkt. No. 178-5
at 1 ¶ 3 (Sworn affidavit of C.O. Breyett, stating “I did not
know that [plaintiff] was a member of Clinton's [ILC], nor
did I know about any activities he undertook with respect to
the ILC.”); Dkt. No. 178-11 at 2 ¶ 4 (Sworn affidavit of Supt.
Uhler, stating that, “[a]t the time of the events in question, I
was not aware that [plaintiff] had been a member of the [ILC]
at Clinton, as I did not work at that facility. I was not aware
that [plaintiff] had engaged in any constitutionally protected
behavior.”).
*7 Similarly, defendants contend that, although “Capt.
Devlin, Sgt. King, and Capt. Bishop” were aware that plaintiff
was on the Clinton C.F. ILC, they “did not know that plaintiff
authored the Dec. 9 Memo, or the Dec. 16 Agenda.” See Dkt.
No. 178-2 at 18; Dkt. No. 178-6 at 2 ¶ 4 (Sworn affidavit
of Capt. Devlin, stating “I was aware that [plaintiff] was
a member of the [ILC] at Clinton but did not know that
he authored a memo on December 9, 2015, regarding the
adverse effects of Clinton's shower policy. Nor did I know
that on December 16, 2015, he drafted the memo outlining
assaults on inmates, inappropriate removal from jobs, and a
request to review and implement issues with the showers,
or that he ultimately submitted a ‘watered down’ version
of this agenda.”); Dkt. No. 178-8 at 1 ¶ 2 (Sworn affidavit
of Sgt. King, acknowledging that he knew of plaintiff's
involvement on the Clinton ILC, but had no knowledge of
the December letter or agenda); Dkt. No. 178-4 at 1, 2 ¶¶ 4,
5 (Sworn affidavit of Capt. Bishop, acknowledging that he
knew of plaintiff's involvement on the Clinton ILC, but had
no knowledge of the December letter or agenda).
Defendants also contend that “[n]o inference of retaliation
arises from the facts in this case.” Dkt. No. 178-2 at 18. First,
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defendants aver, no inference of retaliation arises from the
administrative reversal of plaintiff's March 2016 disciplinary
determination during the pendency of his N.Y. C.P.L.R. article
78 proceeding. See id. In particular, defendants argue that
“[t]he evidence shows that [ ]Venettozzi and [ ]Rodriguez
acted because they wanted to do their jobs and ensure that no
constitutional violations had occurred[,]” and that plaintiff's
“speculative allegations to the contrary cannot raise a genuine
issue of fact.” Id. Defendants assert that plaintiff's filing of
a voluminous amount of letters, some of which were only
sent to Venettozzi and some of which were only sent to
Rodriguez, “overwhelmed their usual review process and
caused confusion about the status of his requests.” Id. at
18-19. Defendants submit the sworn affidavit of Venettozzi,
which explains that, “[a]t the time of the events in question,
[he] was the Director of Special Housing/Inmate Disciplinary
Program employed by [DOCCS,]” and that his “job duties
include[d] reviewing and deciding administrative appeals
from Tier III disciplinary hearings.” Dkt. No. 178-12 at 1 ¶
2. Venettozzi states that he “did not work at Clinton [C.F.]
and was not personally involved with the issuance of either
Inmate Misbehavior Report ... in this case. Nor was [he]
involved with the hearings, other than to review [plaintiff's]
appeals from their decisions.” Id. at ¶ 3. Further, Venettozzi
explains that, “[a]side from Acting Director Rodriguez, who
works in the same office ..., [he] never spoke with any of
the other defendants about this case during the relevant time
period[,]” and that he has “no memory of speaking with ...
Rodriguez about this case during the relevant time period.”
Id. at 1-2 ¶ 3. Venettozzi also denies having knowledge that
plaintiff “had engaged in constitutionally protected activity at
the time the [misbehavior reports] were issued, or the hearings
were held.” Id. Venettozzi explains that plaintiff “filed
numerous letters and requests with [his] office” and that,
“[a]s an administrative matter, it was difficult to keep track
of them all, especially since some” letters from Venettozzi's
and Rodriguez's office “crossed in the mail with some of
[plaintiff's] requests, and [because plaintiff] sent multiple
requests regarding the same matters.” Id. at 2 ¶ 5. Venettozzi
indicates that, “[u]pon information and belief, ... Rodriguez
reviewed some of [plaintiff's] letters, and [he] reviewed
others[,]” but that neither of he nor Rodriguez “knew about
the correspondence that was reviewed by the other[,]” and
denies retaliating against plaintiff or conspiring with any other
defendant to do so. Id.; see id. at ¶ 4.
Venettozzi states that, on September 28, 2016, his office sent
plaintiff a letter in response to a September 22, 2016 letter that
plaintiff submitted requesting reconsideration of the March
2016 disciplinary determination, “informing [plaintiff] that,
because the matter was currently the subject of litigation,
[Venettozzi's office] would not reconsider the issue at that
time.” Dkt. No. 178-2 at 5 ¶ 25. However, Venettozzi
further explains that, on July 10, 2017, Rodriguez issued
the decision that administratively reversed and expunged
plaintiff's March 2016 disciplinary determination. See id.
at ¶¶ 26-27. Venettozzi states that, “[u]pon information
and belief, ... Rodriguez issued [the] reversal because he
was reviewing part of the correspondence from [plaintiff],
without realizing that [Venettozzi] had reviewed another
part[,]” and that Rodriguez “was not aware that [Venetozzi
had issued the September 28, 2016 letter putting [plaintiff's]
requests for reconsideration of the [March 2016 disciplinary
determination] on hold.” Id. at ¶ 27. Venettozzi also states that
Rodriguez was not aware that plaintiff had commenced a N.Y.
C.P.L.R. article 78 proceeding. See id. However, Venettozzi
posits that none of the actions taken by his office were done
in retaliation for plaintiff's ILC activities, and, in fact, were
all favorable to plaintiff. See id. at 5-6 ¶ 28.
*8 Defendants also submit Rodriguez's sworn affidavit in
support of their motion for summary judgment. See Dkt.
No. 178-9. Rodriguez, like Venettozzi, states that he has no
memory of speaking with Venettozzi about plaintiff's case, did
not discuss the case with any other defendants in this action,
and denies conspiring or retaliating against plaintiff. See id.
at 2 ¶ 3. He further explains that he was not even aware that
plaintiff engaged in constitutionally protected activity at the
time DOCCS personnel issued either misbehavior report. See
id. Rodriguez reiterates Venettozz's explanation that, given
plaintiff's large volume of submissions, it became difficult to
keep track of plaintiff's requests, especially given that plaintiff
“made multiple requests regarding the same matters.” Id.
at ¶ 4. Like Venettozzi, Rodriguez believes that Venettozzi
reviewed some of plaintiff's submissions, while he reviewed
others. See id. at ¶ 6. Further, Rodriguez explains that, he “was
not aware that ... Venettozzi had issued” his September 28,
2016 letter putting plaintiff's request for reconsideration of
the March 2016 disciplinary determination on hold pending
the article 78 proceeding. Id. at 5 ¶ 28. Rather, Rodriguez
“believed, based on correspondence from [plaintiff] that
[he] had reviewed, [that plaintiff] was merely considering
bringing such an action. Additionally, the case was not in
[Rodriguez's] list of urgent cases, as [plaintiff] had already
served his sentence.” Id. Rodriguez explains that, on July
10, 2017, he issued the decision administratively reversing
and expunging the March 2016 disciplinary determination,
because he “believed, based upon the location of where the
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weapon was found, that it was possible that someone else had
placed the weapon [where it was recovered in plaintiff's cell],
not [plaintiff].” Id. at ¶ 29. However, Rodriguez submits that,
“had [he] known that an Article 78 proceeding was pending,
[he] would not have issued a decision until the proceeding was
complete.” Id. at 6 ¶ 30. Moreover, Rodriguez indicates he did
not take any action concerning plaintiff's case in retaliation for
plaintiff's ILC activities and, in any event, “all of the actions
that [he] and [his] office took were favorable to [plaintiff].”
Id. at ¶ 31.
Further, defendants argue that, plaintiff's assertion that an
inference of retaliation arises from Captain Devlin's alleged
comments, “ ‘What the fuck are you still doing here?’ and
[ ] ‘You'll see,’ in response to [plaintiff's] inquiry ... about
his [February 2016 disciplinary determination,]” lacks force.
Dkt. No. 178-2 at 19. Defendants submit Capt. Devlin's
affidavit in which he acknowledges that he saw plaintiff in
his cell “at some point,” but “vehemently den[ies] that [he]
ever said” either of those comments or “ever threaten[ed]
him or otherwise imply[ied] that anyone was about to go
after him.” Dkt. No. 178-6 at 2 ¶ 8. “Thus,” defendants aver,
“the only evidence in this case illustrates that the event never
happened.” Dkt. No. 178-2 at 19. In any event, defendants
contend that these “benign and ambiguous” comments fail
to establish that Capt. Devlin acted with retaliatory animus
because plaintiff does not allege having any prior interactions
with Capt. Devlin, and Capt. Devlin was unaware of plaintiff's
ILC activities. Id. at 20; see Dkt. No. 178-6 at 2 ¶ 4.
2. Section 1983 Conspiracy Claims
a. February 2016 Disciplinary Proceeding
Defendants aver that, contrary to plaintiff's allegation that
Supt. Kirkpatrick, Lt. Durkin, and Capt. Bishop conspired to
have Lt. Durkin assigned as the hearing officer at the February
2016 disciplinary proceeding, “the evidence establishes that
they never discussed Lt. Durkin's appointment with one
another and, thus, could not have conspired.” Dkt. No.
178-2 at 21. Rather, defendants aver, Supt. Kirkpatrick
independently appointed Lt. Durkin to preside over the
hearing without discussing the appointment with either Lt.
Durkin or Capt. Bishop. See id. Defendants point to Supt.
Kirkpatrick's affidavit in which he indicates that his “decision
to assign [Lt.] Durkin as the hearing officer on the first
[misbehavior report] was not motivated by a desire to retaliate
against [plaintiff] for his participation on the ILC,” Dkt.
No. 178-13 at 4 ¶ 19, and that his “assign[ment of] Lt.[ ]
Durkin as the hearing officer .... was appropriate as he had not
taken part in investigating the incidents underlying the [first
misbehavior report], and had served as hearing officer on 22
hearings.” Id. at 2 ¶ 8.
In his sworn affidavit, Lt. Durkin states that he never
discussed plaintiff's involvement on the ILC with any other
defendant in this action, and that he “did not request to
be appointed [as] the hearing officer” or “discuss being
appointed the hearing officer with any other [d]efendant.”
Dkt. No. 178-7 at 2 ¶¶ 4, 9. Lt. Durkin states that he was
not “unfamiliar with the hearing procedures, as [he] had
previously served as a hearing officer on 22 occasions[,]”
“did not state that the [February 2016 misbehavior report]
was ‘problematic[,]’ ” or “inform Kowalowski that [plaintiff]
had accused him of retaliation.” Id. at 3 ¶¶ 11, 12, 13.
Moreover, Lt. Durkin states that his determination that
plaintiff was guilty of using “DOCCS letterhead for a purpose
that was unrelated to official government business,” namely
for “try[ing] to obtain adult magazines of a sexual nature,”
was based on his understanding of DOCCS regulations, and
not to retaliate against plaintiff. Id. at ¶ 15. As stated above,
Lt. Durkin denies having knowledge that plaintiff served on
the Clinton C.F. ILC or of his specific activities as secretary
of that body, and never discussed plaintiff's involvement on
the ILC with any other defendant. See id. at 2 ¶ 4.
*9 In addition, defendants submit Capt. Bishop's affidavit
in which he explains that, “on or around January 26, 2016,
[he] believe[s] [he] read a letter that [plaintiff] had written
on DOCCS letterhead[,]” which “was not regarding official
government business[,]” but instead consisted of “personal
correspondence regarding an adult magazine with sexual
content that [plaintiff] wished to obtain.” Dkt. No. 178-4 at 2
¶ 9. Capt. Bishop states that such use of DOCCS letterhead
“was ... inappropriate ..., and a clear violation of [DOCCS]
Directive No. 0008.” Id. He further notes that, on January 29,
2016, Sgt King issued plaintiff a misbehavior report based on
plaintiff's improper use of DOCCS letterhead, but states that
he “did not direct Sgt. King to write this [misbehavior report]”
and states that he “did not have any personal involvement
in the issuance of th[is] misbehavior report or the [February
2016 disciplinary] hearing.” Id. at 2-3 ¶¶ 10, 11.
Finally, defendants contend that Rodriguez was not involved
with the first misbehavior report or the February 2016
disciplinary proceeding and, therefore, did not engage in any
conspiracy. See Dkt. No. 178-2 at 21; Dkt. No. 178-9 at 1-2
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¶ 3. In his sworn affidavit, Rodriguez states, “I did not work
at ... Clinton [C.F.] and was not personally involved with the
issuance of either Inmate Misbehavior Report ... in this case.
Nor was I involved with the hearings, other than to review
[plaintiff's] appeals from their decisions.” Dkt. No. 178-9 at
1-2 ¶ 3. Rodriguez also denies discussing this case with any
other defendant aside from Venettozzi, who worked in the
same office, and posits that he has “no memory of speaking
with ... Venettozzi about this case during the relevant time
period.” Id. at 4 ¶ 3.
b. March 2016 Disciplinary Proceeding
Defendants argue that the evidence establishes that no
conspiracy existed with respect to the February 2016
misbehavior report and March 2016 disciplinary proceeding.
See Dkt. No. 178-2 at 22. Defendants argue that plaintiff's
contention that, because the handwritten date on the last
page of the UIR under the photograph of the weapon is
February 29, 2016, rather than February 28, 2016, fails to
demonstrate that Capt. Bishop and Capt. Devlin engaged in
a conspiracy. See id. Defendants posit that the date contained
on this document, at most, establishes a harmless ministerial
error. See id. Defendants also aver that C.O. Breyette “had no
contact with either Capts. Devlin or Bishop.” Id. In support
of this contention, defendants cite C.O. Breyette's affidavit,
which states that he “did not communicate about this incident
with any other defendant in this case, other than [C.O.]
Tucker, who searched [plaintiff's] cell with him.” See id.
(citing Dkt. No. 178-5 at 2 ¶ 11). C.O. Tucker also stated in his
affidavit that he “had no communications with anyone about
the events underlying [C.O. Breyette's misbehavior report],
other than [C.O.] Breyette ....” Dkt. No. 178-10 at 2 ¶ 10.
Defendants contend that the record evidence establishes
that, contrary to plaintiff's allegations, Supt. Kirkpatrick
independently assigned Capt. Bishop to preside as the H.O. at
the March 2016 disciplinary hearing without ever discussing
his decision with either Capt. Bishop or Supt. Uhler. See
Dkt. No. 178-2 at 22. Defendants explain that, because
the discovery of the weapon that gave rise to the second
misbehavior report occurred at Clinton C.F., Supt. Kirkpatrick
was responsible for assigning the H.O. to preside over the
disciplinary hearing, and neither Capt. Bishop nor Supt.
Uhler had any involvement in that decision. See id. at
22-23. In his affidavit, Supt. Uhler explains that, “[a]t the
time of the events in question, [he] was employed ... as
the Superintendent of Upstate [C.F.]” and that, he neither
appointed Capt. Bishop as the hearing officer for the March
2016 disciplinary proceeding, or discussed his appointment
with anyone, including Supt. Kirkpatrick. Dkt. No. 178-11
at 1, 2 ¶¶ 2, 6. “In fact,” Supt. Uhler states, he “did not
have any other role in the [March 2016 disciplinary] hearing,
other than the fact that [he] (or [his] designee) conducted a
review of the hearing to ensure that all proper procedures
were followed, as is done for all hearings held at Upstate
[C.F.]” Id. Supt. Kirkpatrick indicates in his sworn affidavit
that “[i]t is common procedure and courtesy to have a hearing
officer from the facility where the incident occurred [conduct
the hearing] if the inmate has been transferred from that
facility before the hearing takes place.” Dkt. No. 178-13 at
3 ¶ 13. Supt. Kirkpatrick states that he “did not discuss the
appointment with [Capt.] Bishop or [Supt.] Uhler.” Id. at
2 ¶ 11. Moreover, defendants reassert that Rodriguez and
Venettozzi “never discussed this case with any of the other
[d]efendants[ ]” and, therefore, did not engage in a conspiracy.
Dkt. No. 178-2 at 23.
3. Procedural Due Process Claim Against Capt. Bishop
Relating to the March 2016 Disciplinary Proceeding
*10 Defendants argue that plaintiff had no constitutionally
protected liberty interest with respect to his due process
claims relating to the March 2016 disciplinary hearing
“because his sentence of 120 days in SHU does not constitute
an atypical hardship since there were no other adverse
conditions of confinement.” Dkt. No. 178-2 at 25 (citations
omitted). Indeed, defendants contend, plaintiff served only 92
days for both of his SHU sentences. See id. at 26. Defendants
also posit that the imposition of loss of packages, commissary,
and phone privileges does not constitute adverse conditions
such that plaintiff's SHU sanction was atypical. See id.
Further, defendants submit that, contrary to plaintiff's
argument, he was afforded all process due. See Dkt. No.
178-2 at 26. In this regard, defendants argue that Capt. Bishop
was a fair and impartial hearing officer. See id. at 27. In
particular, defendants point to Capt. Bishop's sworn affidavit
in which he stated that he was properly appointed to preside
over the March 2016 disciplinary hearing because he did
not investigate the February 28, 2016 incident, and because
his name appears on the UIR only as a matter of form. See
id. Capt. Bishop explained that he “did not draft [the] UIR
or investigate the claims within it” and that his “name was
listed on the UIR as the ‘person reporting’ because, as a
matter of course, the [c]aptain's name was listed on all UIRs.”
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Dkt. No. 178-4 at 3 ¶ 14. Supt. Kirkpatrick corroborated
Capt. Bishop's explanation, explaining that Capt. “Bishop
did not investigate the incident giving rise to the March
2016 misbehavior report].” Dkt. No. 178-13 at 3 ¶ 16. Supt.
Kirkpatrick stated that Capt. Bishop's “name is listed on the
UIR simply because the Captain's name is listed on the UIR as
a matter of course” and that his “own name is [also] listed on
the UIR, not because [he] investigated the incident [or] ha[d]
personal knowledge of the events described in the document,
but simply because [he] was the Superintendent of the facility
at the time the UIR was issued, and [his] name [wa]s listed
as a matter of course.” Id. Supt. Kirkpatrick further explained
the procedure for how a UIR is filed:
The UIR initial paperwork is written
by the line officer, who submits the
paperwork to the Sergeant for review.
The Sergeant then reviews and submits
it to the Watch Commander, who
reviews and electronically files the
UIR and submits all paperwork related
to the UIR. The Watch Commander
then submits it to the Captain, who
reviews and makes sure the paperwork
is complete and in order. The Captain
then submits it to the Superintendent.
Id. at ¶ 17. Supt. Kirkpatrick corroborated Capt. Bishop's
statement that he did not investigate the March 2016 incident
by explaining that, “[n]one of these individuals, aside
from the line officer and Sergeant, are considered to have
‘investigated’ the incident merely by being part of this chain
of review.” Id. Thus, defendants urge, plaintiff's due process
claim in this regard lacks merit and must be dismissed. See
Dkt. No. 178-2 at 27.
Next, defendants contend that plaintiff's due process rights
were not violated when he was not provided all of the drop
box logbook dates that he requested. See Dkt. No. 178-2 at
27. Defendants urge that plaintiff was afforded all process
to which he was due because he was provided access to the
February 28, 2016 logbook entries and allowed to question
Sgt. Baker, the individual who had photographed the weapon,
who confirmed that the weapon had been recovered and
photographed on that date. See id. Defendants posit that the
additional pages plaintiff requested (i.e. the pages spanning
from February 29, 2016, to March 1, 2016), were not relevant
to the March 2016 disciplinary hearing and, therefore, Capt.
Bishop did not violate his due process rights by denying
plaintiff access to those log book entries. See id. at 27-28.
*11 With respect to plaintiff's contention that defendants
violated DOCCS evidence rules when the weapon recovered
from his cell on February 28, 2016, was not purged from the
evidence drop box for approximately eight days instead of
within 72 hours, as required pursuant to DOCCS Directive
4910A, defendants posit that such a mistake constitutes, at
most, harmless error and did not violate plaintiff's due process
rights. See Dkt. No. 178-2 at 28. Capt. Bishop explained in his
sworn affidavit that he determined that, although the failure
to purge the evidence drop box within the time required under
Directive 4910A constituted “a procedural violation,” he “it
was harmless because no one accessed the dropbox during
those 8 days.” Dkt. No. 178-4 at 5 ¶ 25. Relying on Capt.
Devlin's sworn affidavit, defendants posit that, because no
one accessed the evidence drop box during the eight days the
weapon remained there, that evidence was “unaltered.” Dkt.
No. 178-2 at 28; see Dkt. No. 178-6 at 3 ¶ 10 (Capt. Devlin's
affidavit stating, although the weapon was not removed from
the evidence drop box within 72 hours, as contemplated under
DOCCS Directive 4910A, “no one accessed the drop box
during this time.”).
Moreover, citing Capt. Bishop's affidavit, defendants argue
that the incorrect handwritten date of February 29, 2016,
contained under the photograph of the weapon, was due
solely to a clerical error and is not relevant to the weapons
charge that formed the basis of the second misbehavior report.
See Dkt. No. 178-2 at 28; Dkt. No. 178-4 at 4 ¶ 22. Capt.
Bishop explained that, on March 29, 2016, the last day
of the March 2016 disciplinary hearing, he questioned Sgt.
Baker, who stated that the correct date on which the weapon
was recovered and photographed was February 28, 2016,
and that the handwritten date contained on the photograph
was a “clerical error.” Id. at 5 ¶ 23. Capt. Bishop noted
that, between the second and third days of the March 2016
disciplinary hearing, Sgt. Baker reviewed his attendance
records, which indicated that he was not working on February
29, 2016, but was working on February 28, 2016, and that
he had photographed the weapon; therefore, Capt. Bishop
“concluded that the 28 th ” was the correct date, “and the hand-
written date was an error.” See id. at ¶ 24. In any event,
defendants contend, “[t]he date on the photograph did not
impact the [h]earing [d]ecision.” Dkt. No. 178-2 at 29.
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4. Defendants’ Remaining Arguments
In addition, defendants contend that the Amended Complaint
should be dismissed as to all defendants with respect to
plaintiff's First Amendment retaliation and Section 1983
conspiracy claims for lack of personal involvement. See Dkt.
No. 178-2 at 10-16. In this regard, defendants rely exclusively
on their arguments and evidence as to the merits of plaintiff's
First Amendment and Section 1983 conspiracy claims. See
id. Similarly, drawing exclusively on their arguments on the
merits of plaintiff's First Amendment retaliation and Section
1983 conspiracy claims, defendants aver that they are entitled
to qualified immunity. See id. at 29-32.
B. Arguments and Evidence in Support of Kowalowski's
Motion for Summary Judgment (Dkt. No. 179)
1. First Amendment Retaliation
Kowalowski first argues that his statements, which plaintiff
alleges constituted “threats,” do not constitute adverse action
and are not causally related to plaintiff's constitutionally
protected activities on the ILC. See Dkt. No. 179-4 at
7. First, with respect to Kowalowski's statement that ILC
members “have a target on their backs” and therefore, must
“be careful,” Kowalowski argues that the context in which
he made this statement establishes that it was not meant
as a threat, but rather, as advice. See id. In particular,
Kowalowski explains that he made this statement to the
entire class of ILC inmates, as he did to every new class
of ILC members, and “meant this as a truthful warning to
the ILC members.” Dkt. No. 179-3 at 2 ¶ 7. Kowalowski
states, it “was clear from the context of the conversation,”
that he gave this advice because “inmates tend to see ILC
members as the scapegoat for jail conditions that frustrate
inmates” and “tensions can arise between security and
staff and ILC members.” Id. at 2 ¶¶ 8, 9, 10. Therefore,
Kowalowski argues that, understood in the proper context
and notwithstanding plaintiff's conclusory assertions to the
contrary, this statement cannot constitute adverse action to
support plaintiff's First Amendment retaliation claim. See
Dkt. No. 179-4 at 7. In addition, Kowalowski contends that no
causal connection exists between this statement and plaintiff's
constitutionally protected ILC activities, as “[t]here is no
indication that [p]laintiff had even made a constitutionally-
protected statement in the meeting prior to Kowalowski, let
alone a statement that actually motivated Kowalowski to
express this ‘threat.’ ” Id. at 8-9. Indeed, Kowalowski argues,
plaintiff did not even perceive this statement as a threat at the
time it was made and only later viewed the statement in this
light based on “hearing second-hand accounts of the fate of
other [ILC] members ....” Id. at 8.
*12 Next, Kowalowski denies threatening plaintiff with
SHU confinement in retaliation for the content contained in
plaintiff's proposed December 2015 ILC agenda. See Dkt.
No. 179-4 at 9. Kowalowski points out that, at deposition,
plaintiff only recalled that Kowalowski objected to the length
of the proposed agenda. See id. (citing Dkt. No. 179-2 at 63
(Deposition Transcript). Plaintiff testified at deposition that,
while he could not recall “exactly why [Kowalowski] said he
wasn't going to submit” the proposed December 2015 ILC
agenda, Dkt. No. 179-2 at 61, plaintiff watered the agenda
down to omit “issues expressed about the assaults by staff.”
Id. at 62. While plaintiff did not recall whether Kowalowski
took issue with the inclusion of complaints of assault by
staff, plaintiff stated that “there had to be some discussion
about that, because it was removed. And it wouldn't be
removed without there being some discussion about it not
being appropriate for the agenda.” Id. at 63. Plaintiff also
testified that he “remember[ed] loosely, very vaguely, that
there was a conversation that a lot of th[e] stuff [included in
the proposed agenda] c[ould] be taken care of off the record.”
Id. Kowalowski also points to plaintiff's January 11, 2016
letter to New York State Assemblyman O'Donnell, noting that
plaintiff stated only that Kowalowski objected to the proposed
agenda's length and the highlighting of prison administrator's
names. See id. In particular, plaintiff's January 11, 2016,
letter to Assemblyman O'Donnell, states that Kowalowski
informed him that he could not submit his proposed five-page
agenda because it was “too long[ ] and [plaintiff] highlighted
their (administration's) names.” Dkt. No. 25-1 at 124. In
his letter to Assemblyman O'Donnell, plaintiff posits that
“the real reason why [Kowalowski] was upset” is because
the proposed agenda “talk[ed] about misrepresentation and/
or misappropriation of $10,000 in ILC fundraiser money,
violating [DOCCS] Directive 2771.” Id. Further, Kowalowski
states that, upon observing the length of the proposed agenda,
he simply relayed a directive from Supt. Kirkpatrick to
plaintiff that the Clinton C.F. administration would no longer
accept ILC agendas longer than one page or containing more
than four or five individual items. See Dkt. No. 179-3 at
4 ¶ 21. Kowalowski states that he did not comment on or
direct plaintiff to “water down” the content of the proposed
agenda. Id. at 4-5 ¶¶ 26-28. “In fact,” Kowalowski states, he
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“did not review the agenda in any detail before counseling
[plaintiff] regarding its length.” Id. at 5 ¶ 28. At most,
Kowalowski states, he believed that submitting an agenda
longer than one page would have resulted in Clinton C.F.
cancelling the ILC meeting, but not a SHU sanction for any
ILC member. See id. at 5-6 ¶ 27. Thus, Kowalowski argues,
his instruction regarding the length of the proposed agenda
did not constitute a threat, and no causal connection exists
between the alleged threat and the constitutionally protected
contents of the proposed agenda. See Dkt. No. 179-4 at 10, 11.
Further, Kowalowski contends that plaintiff's allegation that
he “snatched” a piece of paper from plaintiff's hand, which
contained a list of proposed television channels, and stating,
“You are not as important as you think you are” does not
constitute a threat sufficient to support a First Amendment
retaliation claim. Dkt. No. 179-4 at 13 (quoting Amen.
Compl. at 15 ¶ 56). In particular, Kowalowski contends
that, even assuming that he took the piece of paper and
made these comments, his actions do not rise to the level
of adverse action. See id. Kowalowski avers, plaintiff's
allegations amount to, at most, “generalized discourtesy,”
which is not actionable under Section 1983. Id. at 14.
Kowalowski also argues that plaintiff has failed to establish a
First Amendment retaliation claim against him based on his
alleged involvement with the January 29, 2016 misbehavior
report relating to plaintiff's use of DOCCS letter head. See
Dkt. No. 179-4 at 14-17. Kowalowski explains that he is
the co-chair of the FMRC, which is an entirely separate role
from his position as ILC Advisor. See Dkt. No. 179-3 at 5,
6 ¶¶ 35, 36. Kowalowski contends that plaintiff received a
magazine that was flagged by civilian mail staff and referred
to the FMRC, a member of which ultimately determined that
the magazine contained prohibited pornographic content. See
Dkt. No. 179-4 at 14. Kowalowski explains that, although he
did not personally review plaintiff's magazine, in his role as
co-chair of the FMRC he “sign[s] all determinations made
by members of the FMRC.” Dkt. No. 179-3 at 6 ¶ 36;
see id. at ¶ 39. When plaintiff “approached [Kowalowski]
about the status of his magazine, [Kowalowski] told him
that he was entitled to appeal the FMRC decision to the
COMRC in Albany.” Id. at ¶ 42. Plaintiff testified at his
deposition that “[t]here was nothing untoward about” the
way Kowalowski presented this message to him and that
“[t]here was no feelings on [sic] animosity about it[,]” and that
plaintiff “didn't take it personally in any way. [Kowalowski]
was doing his job.” Dkt. No. 179-2 at 104. Plaintiff appealed
the FMRC's determination and the COMRC affirmed the
FMRC's determination on appeal. See Dkt. No. 179-3 at
6 at ¶ 41. Kowalowski notes that, on January 23, 2016,
plaintiff sent a memorandum, drafted on official DOCCS
interdepartmental communication letterhead, to Hollmen
in which he objected to the terminology and reasoning
the COMRC used in its decision affirming the FMRC's
determination. See Dkt. No. 25-1 at 149-52.
Kowalski states that, “[i]n January of 2016, [Capt.] Bishop
summoned [him] to his office[,]” where they met with non-
party Deputy Superintendent Bell (“Deputy Supt. Bell”). Dkt.
No. 179-3 at 6 ¶ 43. Capt. Bishop informed Kowalowski that
he and Deputy Supt. Bell “had learned that [plaintiff] had
been using certain letterhead in his correspondence.” Id. at ¶
44. Capt. Bishop and Deputy Supt. Bell showed Kowalowski
the letterhead, which Kowalowski “recognized ... from other
correspondence that [he] had seen from [plaintiff].” Id.
However, Kowalowski “do[es] not know the substance of
the correspondence that [Capt.] Bishop showed [him].” Id.
at ¶ 45. “Capt. Bishop asked [Kowalowski] if [he] would
be willing to write a misbehavior report against [plaintiff]
for his use of the letterhead.” Id. at 7 ¶ 47. Although
Kowalowski “understood [Capt.] Bishop's objection, [he]
refused his request.” Id. at ¶ 48. Kowalowski explains that,
although he “understood the letterhead to be an issue for
the security administration[, i]t did not relate to [his] role as
Resident Coordinator or ILC Advisor[ ]” and Kowalowski
“had no special knowledge or awareness of the relevant
facts” concerning plaintiff's letter. Id. Kowalowski further
states that, “[a]t the time of [his] meeting with [Capt.]
Bishop and [Deputy Supt.] Bell, [he] was not aware of any
connection between the review of [plaintiff's] magazine and
the letterhead.” Id. at ¶ 50. Moreover, Kowalowski states
that, although he “subsequently learned that [Sgt.] King
wrote a misbehavior report against [plaintiff] relating to
the letterhead[,]” he did not encourage Sgt. King or any
other DOCCS personnel to write a misbehavior report, did
not participate in any way in the February 2016 Tier III
disciplinary hearing, id. at ¶ 53, and was not referenced in
the January 2016 misbehavior report. See Dkt. No. 179-4 at
17. Thus, Kowalowski contends, the record evidence does
not establish a claim of retaliation against him with respect
to the issuance of the January 29, 2016 misbehavior report,
because he did not issue the misbehavior report or otherwise
have any involvement in the issuance of that misbehavior
report, and no causal connection exists between plaintiff's ILC
activities and Kowalowski's “tangential involvement” with
the FMRC review of plaintiff's magazine and the January 29,
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2016 misbehavior report and subsequent sanction. See id. at
17-19.
Section 1983 Conspiracy
*13 Kowalowski first argues that, for the reasons set
forth above, plaintiff's Section 1983 conspiracy claim lacks
merit. See Dkt. No. 179-4 at 22. Alternatively, Kowalowski
contends that plaintiff's conspiracy claim should be dismissed
because all of the alleged conduct complained of occurred
while defendants were acting within the scope of their
employment. See id. at 22-23.
C. Plaintiff's Responses in Opposition
1. Plaintiff's Response in Opposition to Defendants’
Motion for Summary Judgment (Dkt. No. 193)
Plaintiff first controverts defendants’ contention that he
failed to establish their personal involvement, arguing that,
“when the defendants retaliated against [him] for [his]
constitutionally conduct as an ILC member submitting an
[a]genda in accordance with DOCCS Directive #4002 ...,
setting forth grievances on behalf of the inmate population,
they became personally involved in the constitutional
violations against [him].” Dkt. No. 193-2 at 10-11. He
also posits that “[n]umerous [i]nferences of [r]etaliation are
[a]pparent from the [f]acts of [t]his [c]ase.” Id. at 20. He
also avers that Lt. Durkin's “retaliation and conspiracy against
[him] was apparent when he violated [his] Due Process rights
in the [February 2016 disciplinary] hearing.” Id. Plaintiff
argues that “[t]he fact that Sgt. King conspired and retaliated
against [him] is not defeated because Sgt. King did not know
about the Dec. 9 th letter or the Dec. 16 th Agenda, as his
lack of knowledge of this memo and agenda did not prevent
him from conspiring and retaliating ....” Id. (internal citation
omitted).
Plaintiff contends that “Kowalowski's statement that he was
summoned to Capt. Bishop's office, ... and was asked by
Capt. Bishop if he would be willing to write a misbehavior
report ..., provides a strong causal connection/inference that
once Capt. Bishop was unable to have Kowalowski write
the [January 2016 misbehavior report, he instead directed
Sgt. King to write it.” Id. Plaintiff avers that C.O. Breyette's
and C.O. Tucker's lack of knowledge of plaintiff's ILC
activities “did not prevent them from conspiring with other
defendants ... to retaliate against [him].” Id. at 15. Plaintiff
also asserts that contrary to Capt. Devlin's assertion, he did
make the statements, “What the fuck are you still doing
here” and “You'll see[,]” and that Capt. Devlin was aware
of the December 9 letter and December 16 Agenda. Id. at
16. Further, plaintiff avers that the wrong date contained on
the photograph of the weapon, along with Capt. Devlin's
statements “shows the big picture,” and raises an inference
that Capt. Devlin retaliated against him. Dkt. No. 193-2 at 21.
Moreover, plaintiff avers that Supt. Kirkpatrick “conspired
with [Capt.] Bishop and [Supt.] Uhler when he assigned
[Capt.] Bishop to be [the] hearing officer ....” Id. at 16.
Plaintiff urges that this assignment was “irregular” and, along
with the fact that he signed the UIR, evidences that Supt.
Kirkpatrick conspired with Capt. Bishop and Supt. Uhler to
retaliate against him. Id. In addition, plaintiff contends that
the “multiple failures of ... Rodriguez and ... Venettozzi in
the processing, handling and decision making of [his second
administrative] appeal is indicative of the IDP Directors
[sic] inability to promulgate the Policies, Procedures and
Practices properly for all inmates in the ... custody ... of
[ ]DOCCS.” Id. at 20. Plaintiff posits that Venettozzi's and
Rodriguez's contentions that plaintiff's submission of an
“exorbitant number of letters” confused the review process
and that they reviewed his requests without each other's
knowledge are “weak excuse[s].” Id.
*14 Plaintiff further argues that he “can provide a factual
basis supporting a meeting of the minds, such that defendants
entered into an agreement, express or tacit, to achieve the
unlawful end result of retaliation against [him] for [his]
activities on the ILC.” Dkt. No. 193-2 at 22. Plaintiff
posits that defendants’ affidavits constitute “unsupported
allegations that they did not discuss [his] claims,” which
“lack[ ] substance and merit.” Id. For instance, plaintiff
contends, “Capt. Bishop clearly directed Sgt. King to write
the first [misbehavior report] after he tried, and failed, to have
Kowalowski do so.” Id. at 23. He states that Capt. “Bishop's
sworn affidavit that he had nothing to do with the [first
misbehavior report] is highly doubtful, being that he tried to
have Kowalowski do so and failed.” Id. “In furtherance of
this conspiracy,” plaintiff states, Supt. “Kirkpatrick assigned
Lt. Durkin ... to be [his] hearing officer,” rather than non-
party “Lt. Miller, who was the person regularly assigned to
handle such hearings, left for the day.” Id. Plaintiff states that
defendant have failed to provide him proof that Lt. Miller was
“overwhelmed” to justify Lt. Durkin's appointment, therefore
strongly implying “that Lt. Durkin was assigned with the
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specific purpose of finding [him] guilty[.]” Id. at 12. Thus,
plaintiff avers, the February 2016 disciplinary hearing was the
result of a conspiracy. See id. at 23.
Plaintiff contends that the March 2016 disciplinary hearing
was also the result of a conspiracy because “it is disputed
that [C.O.] Breyette, as author of the misbehavior report,
did not discuss this case with anyone else, with said
discussions ... in tacit agreement to achieve the unlawful end
of retaliation against [him] for [his] protected conduct ...
as a member of the ILC.” Dkt. No. 193-2 at 23 (internal
citations omitted). Plaintiff contends that Supt. Kirkpatrick's
act of assigning Capt. Bishop as the hearing officer at the
March 2016 disciplinary hearing is “taken outside the scope
of his employment duties,” and that Capt. Bishop's and Supt.
Uhler's “tacit agreement” to allow Capt. Bishop to preside
over the hearing “resulted in their participation in retaliation
against [him].” Id. at 24. Plaintiff also opposes Venettozzi's
and Rodriguez's assertions that they did not collaborate in
reviewing plaintiff's requests, and states that their statements,
“together with the facts asserted in [his] Verified Complaint[,]
provides admissible proof ... that they tacitly agreed to
conspire and obstruct justice by delaying the timely reversal
of [his] administrative appeal during it's [sic] initial review,
as opposed to one year later.” Id. (internal citations omitted).
In addition, plaintiff opposes defendants’ arguments
concerning his Fourteenth Amendment due process claims.
See Dkt. No. 193-2 at 24. He contends that his SHU
constituted “atypical and significant hardship” because he
“was left in [his] cell for 4 days without [his] high blood
pressure medication and without no [sic] clothing but
what [he] was wearing.” Id. at 25. Plaintiff contends that
Capt. Bishop violated his procedural due process rights by
preventing him from eliciting testimony about the chain of
custody of the weapon from non-party Sgt. Baker. See id.
at 27-28. He also contends that the date contained on the
photograph of the weapon was “not a clerical error by Sgt.
Baker, but just another fantasy of the defendants that finds
absolutely zero support in the record[,] a far cry from harmless
error.” Id. at 28 (emphasis omitted). Further, plaintiff reasserts
that he was denied due process because Capt. Bishop was
a partial hearing officer based on his involvement with
the UIR and his alleged involvement in a conspiracy with
Supt. Kirkpatrick and Supt. Uhler. Id. at 27-29. Finally,
plaintiff contends that defendants are not entitled to qualified
immunity, because “there is no objectively reasonable view
of the facts that show that defendants believed that their
actions were not intentional and did not violate [his] clearly
established constitutional rights.” Id. at 29.
2. Plaintiff's Response in Opposition to Kowalowski's
Motion for Summary Judgment (Dkt. No. 194)
In opposition to Kowalowski's motion for summary
judgment, plaintiff first argues that “there is overwhelming
evidence that Kowalowski engaged in adverse actions which
were ... causally ... related to [his] constitutionally protected
conduct as a member of the ILC[.]” Dkt. No. 194-1
at 11. Plaintiff premises this argument on the fact that
he has established “that Kowalowski and the defendants
he conspired with have previously engaged in this same
retaliatory conduct with ILC members serving before [him].”
Id. He further contends that “it is not a coincidence that
[Kowalowski] threatened [him] with 270 days in SHU”
because Emerenciano, another inmate at Clinton C.F.,
“received 270 days in SHU for a misbehavior report written
by Kowalowski.” Id. at 13. Plaintiff avers that Kowalowski's
statement that ILC inmates have “ ‘a target on [their]
backs,’ considered together with [Capt.] Bishop requesting
that [Kowalowski] (once again, like he did to Emerenciano)
write the [misbehavior report] against [plaintiff], show a
causal connection between [plaintiff's] protected conduct ...
and the adverse action [of the] false [misbehavior report]
and confinement.” Id. at 14. Plaintiff avers that “[i]t is of no
moment that Kowalowski chose not to write the [misbehavior
report] against [him],” because “it only reveals his attempt to
shield himself from being identified as part of the conspiracy
against the ILC.” Id. Moreover, plaintiff argues that, because
the revised agenda did not contain “items about assaults by
staff, and other serious issues,” Kowalowski's statement that
he did not read the contents of the proposed agenda is false.
Id. at 15. In addition, plaintiff contends that Kowalowski's act
of “violently snatch[ing]” a piece of paper out of his hand
“represented the ‘final straw’ that compelled [him], through
fear, to ... document this violent act[,]” which he suggests
establishes that Kowalowski's threats did, in fact, “dissuade”
his First Amendment activities. Id. In this regard, plaintiff
contends that his letter to Assemblyman O'Donnell provides
documentary support for his claims against Kowalowski. See
id. at 16. As a final matter, plaintiff reiterates his argument
that he has “provided a factual basis supporting a meeting of
the minds of Kowalowski with [Supt.] Kirkpatrick and [C.O.]
Bishop showing that they entered into an agreement, whether
expressly or tacitly, to achieve the unlawful end of retaliation
against [him] for [his] constitutionally protected conduct as a
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member of the ILC reporting the atrocities [at Clinton C.F.].”
Id. at 19.
D. Defendants’ Reply to Plaintiff's
Opposition (Dkt. No. 195)
*15 Defendants aver that they have met their burden
of proving that no genuine issue of fact exists as to
plaintiff's claims, in opposition to which, plaintiff has failed
to “produce evidence” demonstrating otherwise, as required
pursuant to Rule 56.1(b) of the Federal Rules of Civil
Procedure. Dkt. No. 195 at 6. Further, defendants posit, to
the extent that plaintiff has failed to “cite hard evidence”
in opposition, “the [C]ourt should deem [his] unsupported
‘disputed’ facts admitted.” Id. With respect to plaintiff's
retaliation and conspiracy claims relating to the February
2016 disciplinary hearing, defendants contend that plaintiff
offers no evidence to controvert their entitlement to summary
judgment, and instead relies solely an unsupported “multi-
step inferential chain” to show that defendants conspired to
retaliate against him for his activities on the ILC. Id. at 9.
Further, defendants contend, even assuming arguendo that
plaintiff could establish retaliatory motive, he would have
received the same punishment because “there is no dispute
that ... plaintiff committed the most serious, if not all, of the
prohibited conduct charged in the misbehavior report.” Id. at 8
(internal quotation marks and citations omitted)). Defendants
contend that plaintiff “admitted on multiple occasions that he
used DOCCS letterhead to obtain a magazine that” included
prohibited sexual content. Id. Defendants also oppose, as
belated, plaintiff's argument, contained in his declaration in
opposition, that the January 6, 2016 letter did not contain
DOCCS letterhead because it did not contain a certain logo.
See Dkt. No. 193 at 3 ¶ 12; Dkt. No. 195 at 9.
E. Kowalowski's Reply to Plaintiff's
Opposition (Dkt. No. 196)
In reply to plaintiff's opposition, Kowalowski asserts that,
even if the Court accepts plaintiff's allegations against
Kowalowski as true, the alleged “threats” do not constitute
adverse action. See Dkt. No. 196 at 3. Kowalowski further
argues that plaintiff has failed to proffer evidence to establish
that he “ever commented on, let alone, veto[ed],” any
specific “topic” contained in the December 2016 ILC agenda.
Id. Moreover, Kowalowski contends plaintiff's assertions
pertaining to inmate Emerenciano are irrelevant, fail to
establish any causal connection between any adverse action
and plaintiff's protected activities, and “are of no evidentiary
value[.]” Id. at 6. In any event, Kowalowski contends
that the Emerenciano case is factually distinguishable from
the present matter, Emerenciano filed a grievance against
Kowalowski before Kowalowski wrote a misbehavior report
against that inmate; therefore, unlike plaintiff, Kowalowski
avers, “Emerenciano had an actual, individualized conflict
with Kowalowski before a misbehavior report [was] issued.”
Id. at 6.
Kowalowski also contends that plaintiff's allegation that
Kowalowski was involved in the decision to instruct Sgt.
King to file the January 2016 misbehavior report relating
to plaintiff's use of letterhead based on his attendance at
the meeting with Capt. Bishop and Deputy Supt. Bell is
“wholly speculative” and “based on no competent evidence.”
Dkt. No. 196 at 6. Kowalowski avers that plaintiff's
reliance on his January 11, 2016 letter to Assemblyman
O'Donnell establishes only plaintiff's “ability to document
the minute indignities he perceived and to speculate ... about
malfeasance by DOCCS employees,” but not Kowalowski's
participation in the January 2016 misbehavior report. Id. at
7. Furthermore, as with his retaliation claims, Kowalowski
argues that the “facts” plaintiff relies on in support
of his conspiracy allegations against him are, in fact,
plaintiff's “own conclusory statements about what he believes
occurred.” Id. at 8. In the alternative, Kowalowski avers that
plaintiff's conspiracy claim against him “must fail under the
intracorporate conspiracy doctrine.” Id. at 9.
III. Discussion 6
6 All unpublished opinions cited in this Report-
Recommendation and Order, unless otherwise
noted, have been provided to plaintiff.
A. Legal Standard
Summary judgment may be granted only if the submissions
of the parties taken together “show[ ] that there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “The party moving for summary judgment bears
the initial burden of showing, through the production of
admissible evidence, that no genuine issue of material fact
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exists.” Price v. Oropallo, No. 9:13-CV-0563 (GTS/TWD),
2014 WL 4146276, at *4 (N.D.N.Y. Aug. 19, 2014) (citing
Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006)).
Facts are material if they may affect the outcome of the case
as determined by substantive law. See Anderson, 477 U.S. at
248. A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. (internal quotation marks omitted). “In
determining whether summary judgment is appropriate, [the
Court will] resolve all ambiguities and draw all reasonable
inferences against the moving party.” Skubel v. Fuoroli, 113
F.3d 330, 334 (2d Cir. 1997).
*16 Only after the moving party has met this burden is the
nonmoving party required to produce evidence demonstrating
that genuine issues of material fact exist. See Salahuddin, 467
F.3d at 273. The nonmoving party must do more than “simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). “Conclusory allegations, conjecture,
and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998).
A party opposing summary judgment is required to submit
admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72,
81 (2d Cir. 2010) (“It is well established that in determining
the appropriateness of a grant of summary judgment, [the
court] ... may rely only on admissible evidence.”) (internal
quotation marks and citation omitted). “Statements that
are devoid of any specifics, but replete with conclusions,
are insufficient to defeat a properly supported motion for
summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d
435, 452 (2d Cir. 1999). A plaintiff's verified complaint is
to be treated as an affidavit. 7 See Colon v. Coughlin, 58
F.3d 865, 872 (2d Cir. 1995) (“A verified complaint is to be
treated as an affidavit ... and therefore will be considered in
determining whether material issues of fact exist ....”). “ ‘The
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.’ ”
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)
(brackets omitted) (quoting Anderson, 477 U.S. at 252).
7 Plaintiff's Amended Complaint in this case was not
properly verified. See Amen. Compl. at 80.
Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit stated,
[t]here are many cases in which we
have said that a pro se litigant is
entitled to special solicitude, that a
pro se litigant's submissions must
be construed liberally, and that such
submissions must be read to raise the
strongest arguments that they suggest.
At the same time, our cases have
also indicated that we cannot read
into pro se submissions claims that
are not consistent with the pro se
litigant's allegations, or arguments that
the submissions themselves do not
suggest, that we should not excuse
frivolous or vexatious filings by pro
se litigants, and that pro se status does
not exempt a party from compliance
with relevant rules of procedural and
substantive law ....
Id. (internal quotation marks, citations, and footnote omitted);
see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008) (“On occasions too numerous to count, we
have reminded district courts that when [a] plaintiff proceeds
pro se, ... a court is obligated to construe his pleadings
liberally.”) (internal quotation marks and citations omitted).
B. First Amendment Retaliation
In order to establish a First Amendment retaliation claim
under Section 1983, a prisoner must show the following: that
“(1) ... the speech or conduct at issue was protected, (2) ...
the defendant took adverse action against the plaintiff, and
(3) ... there was a causal connection between the protected
speech and the adverse action.” Espinal v. Goord, 558 F.3d
119, 128 (2d Cir. 2009) (internal quotation marks and citations
omitted). “[I]n the prison context ... adverse action” is
“defined ... objectively[ ] as retaliatory conduct that would
deter a similarly situated individual of ordinary firmness from
exercising ... constitutional rights.” Gill v. Pidlypchak, 389
F.3d 379, 381 (2d Cir. 2004) (internal quotation marks and
citation omitted). “[T]his objective test applies even where
a particular plaintiff was not himself subjectively deterred;
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that is, where he continued to file grievances and lawsuits.”
Id. With respect to the third element of the test, although “
‘[a] plaintiff can establish a causal connection that suggests
retaliation by showing that protected activity was close in
time to the adverse action[,]’ [s]uch circumstantial evidence
of retaliation, ... without more, is insufficient to survive
summary judgment.” Roseboro v. Gillespie, 791 F. Supp. 2d
353, 370 (S.D.N.Y. 2011) (quoting Espinal, 558 F.3d at 129).
*17 “Even if plaintiff makes the appropriate showing of
retaliation, defendants may avoid liability if they demonstrate
that they would have taken the adverse action even in the
absence of the protected conduct.” Brooks v. Rock, No. 9:11-
CV-1171 (GLS/ATB), 2014 WL 1292232, at *18 (N.D.N.Y.
Mar. 28, 2014) (citation omitted); see Scott v. Coughlin,
344 F.3d 282, 287-88 (2d Cir. 2003) (“Regardless of the
presence of retaliatory motive, ... a defendant may be entitled
to summary judgment if he can show dual motivation, i.e., that
even without the improper motivation the alleged retaliatory
action would have occurred.” (italics omitted)).
“[P]risoner retaliation claims are easily fabricated, and ...
pose a substantial risk of unwarranted judicial intrusion
into matters of general prison administration.” Bennett v.
Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal quotation
marks and citations omitted). Accordingly, the Second Circuit
requires courts to “examine prisoners’ claims of retaliation
with skepticism and particular care.” Colon v. Coughlin, 58
F.3d 865, 872 (2d Cir. 1995). Thus, “a plaintiff asserting
such a claim bears a heightened burden of proof and must
plead the claim with particularity.” Green v. Phillips, No.
04-CV-10202 (TPG), 2006 WL 846272, at *3 (S.D.N.Y.
Mar. 31, 2006) (citing Brown v. Middaugh, 41 F. Supp. 2d
172, 191 (N.D.N.Y. 1999)). Consequently, a plaintiff must
set forth non-conclusory allegations to sustain a retaliation
claim. See Green, 2006 WL 846272, at *3; see also Williams
v. Goord, 111 F. Supp. 2d 280, 290 (S.D.N.Y. 2000) (“In
recognition of the reality that retaliation claims can be
fabricated easily, plaintiffs bear a somewhat heightened
burden of proof, and summary judgment can be granted if the
claim appears insubstantial.” (internal quotation marks and
citation omitted)). Allegations, although specific, “may still
be deemed conclusory if [they are] (1) largely unsubstantiated
by any other direct evidence and (2) so replete with
inconsistencies and improbabilities that no reasonable juror
would undertake the suspension of disbelief necessary to
credit the allegations made in the complaint.” Smith v. Woods,
No. 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3
(N.D.N.Y. Apr. 24, 2006) (internal quotation marks and
citations omitted).
Here, it is undisputed that plaintiff's ILC activities constitute
constitutionally protected activity. See Dolan v. Connolly,
794 F.3d 290, 295 (2d Cir. 2015) (holding that “filing
or voicing grievances on behalf of a prison population
as a member of an inmate grievance body, such as the
ILC,” constitutes constitutionally protected activity); Dkt.
No. 178-2 at 17 (Defendants’ memorandum of law in
support of motion for summary judgment, acknowledging
that plaintiff's “activities on the ILC meet the first prong of
the [First Amendment] retaliation test.”); Dkt. No. 179-4 at
5 (Kowalowski's memorandum of law in support of motion
for summary judgment, acknowledging same). However,
as defendants and Kowalowski have established through
admissible evidence that no retaliatory motive or causal
connection exists between plaintiff's protected activities on
the ILC and the alleged adverse action, plaintiff's First
Amendment retaliation claims must be dismissed.
1. February 2016 Disciplinary Proceeding
a. Sgt. King
Defendants have established entitlement to summary
judgment dismissing plaintiff's First Amendment retaliation
claim against Sgt. King based on the allegedly false January
2016 misbehavior report. As an initial matter, “[i]t is well
settled that filing false or unfounded misbehavior charges
against an inmate does not give rise to a per se constitutional
violation actionable under section 1983.” Burroughs v.
Petrone, 138 F. Supp. 3d 182, 205 (N.D.N.Y. 2015) (internal
quotation marks and citation omitted). Indeed, the Second
Circuit has made clear that “a prison inmate has no general
constitutional right to be free from being falsely accused in a
misbehavior report. There must be more, such as retaliation
against the prisoner for exercising a constitutional right.”
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997).
*18 It is well settled that “[a]llegations of adverse actions
alone ... are insufficient to establish retaliation absent facts
supporting an inference of a causal connection between the
adverse actions and the protected conduct.” Baskerville v.
Blott, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002). Factors
indicating retaliatory motive include: (1) temporal proximity
between the protected activity and the alleged retaliatory act;
(2) an inmate's prior good disciplinary record; (3) vindication
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at a hearing on the matter; and (4) statements by the defendant
concerning his motivation. See id. (citing Colon, 58 F.3d
at 872-73). With regard to temporal proximity, the Second
Circuit “has not drawn a bright line to define the outer
limits beyond which a temporal relationship is too attenuated
to establish a causal relationship between the exercise of
a federal constitutional right and an allegedly retaliatory
action.” Gorman-Bakos v. Cornell Co-op. Extension of
Schenectady Cty, 252 F.3d 545, 554 (2d Cir. 2001).
However, as the Second Circuit explained:
[P]risoner retaliation claims are
easily fabricated, and ... pose a
substantial risk of unwarranted judicial
intrusion into matters of general
prison administration. Accordingly,
while we have held that temporal
proximity between protected conduct
and an adverse action constitutes
circumstantial evidence of retaliation,
we have consistently required some
further evidence of retaliatory animus
before permitting a prisoner to proceed
to trial on a retaliation claim.
Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (summary
order) (internal citations and quotation marks omitted).
Here, although the purported adverse action of Sgt. King's
issuance of the allegedly false January 29, 2016 misbehavior
report occurred within close temporal proximity to plaintiff's
submissions of the December 9, 2015 memorandum and
the December 16, 2015 proposed ILC agenda, it is well-
settled that “temporal proximity without more is insufficient
to survive summary judgment.” Flynn v. Ward, No. 15-
CV-1028 (TJM/CFH), 2018 WL 3195095, at *11 (N.D.N.Y.
June 7, 2018) (internal quotation marks and citation omitted).
Further, defendants have proffered admissible evidence
establishing that plaintiff's submission of the December 2016
memorandum and proposed agenda was not “a substantial
or motivating factor” in Sgt. King's decision to issue the
January 29, 2016 misbehavior report. Burton, 664 F. Supp.
2d at 367. In his sworn affidavit, Sgt. King acknowledges
that, although he was aware that plaintiff was a member
of the Clinton C.F. ILC, he did not have knowledge of
plaintiff's December 9, 2015 memorandum to Assemblyman
O'Donnell or the December 16, 2016 proposed ILC agenda,
and that his issuance of the misbehavior report “was not
motivated by a desire to retaliate against [plaintiff] for his
activities on [the ILC], or for any other constitutionally
protected activity.” See Dkt. No. 178-8 at 1 ¶ 3, 2 ¶ 8;
see also Van Dunk v. Brower, No. 11-CV-4564 (ER), 2013
WL 5970172, at *9 (S.D.N.Y. Nov. 7, 2013) (“To prove a
causal connection, the plaintiff must demonstrate that the
individuals who engaged in retaliation had knowledge of the
protected conduct.”); Henson v. Gagnon, No. 9:13-CV-0590
(GTS/TWD), 2015 WL 9809874, at *12-13 (N.D.N.Y. Dec.
10, 2015) (granting summary judgment and dismissing a
pro se inmate's First Amendment retaliation claim against a
correction officer for failure to establish causation where the
correction officer submitted a sworn statement that he had
no knowledge of the plaintiff's grievance against him at the
time he conducted a cell search and issued the plaintiff a
misbehavior report, and the plaintiff offered no evidence to
refute the correction officer's sworn statement), report and
recommendation adopted, No. 9:13-CV-0590 (GTS/TWD),
2016 WL 204494 (N.D.N.Y. Jan. 15, 2016). Further, plaintiff
does not aver, and the record does not indicate, that Sgt.
King ever had any prior dealings with plaintiff, or made
any statements evidencing that Sgt. King had any retaliatory
animus against plaintiff. See Baskerville, 224 F. Supp. 2d
at 732. Moreover, although the February 2016 Tier III
disciplinary decision was ultimately reversed on plaintiff's
administrative appeal, “no admissible record evidence exists
indicating that the reversal was based on a finding that the
misbehavior report in question was intentionally false or even
unintentionally false.” LeBron v. Selsky, No. 9:05-CV-0172
(GTS/DRH), 2010 WL 1235593, at *5 n.9 (N.D.N.Y. Mar.
31, 2010).
*19 In any event, the admissible evidence establishes
that Sgt. King issued the January 2016 misbehavior report
because he reasonably believed that plaintiff had abused
his position as a law library clerk by using DOCCS
letterhead for personal correspondence, in violation DOCCS
Directive No. 0008, in order to obtain sexually explicit adult
magazines—not for any retaliatory purpose. See Dkt. No.
178-8 at 2 ¶ 6. Defendants proffer, as an exhibit to Sgt.
King's affidavit, a copy of DOCCS Directive No. 0008,
which explicitly provides, in relevant part, that “Official
Department stationary will only be used for the transaction
of official governmental business.” Id. at 6. Plaintiff's own
documentary evidence—namely, the copy of his January
23, 2016 memorandum to Hollmen—demonstrates that he
used DOCCS interdepartmental communication letterhead
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for his correspondence with the COMRC concerning the
FMRC's decision to prohibit plaintiff from obtaining two
issues of Cheri magazine. See Dkt. No. 25-1 at 149-52.
Indeed, plaintiff does not deny that he used DOCCS letterhead
for personal use, and contends only that he did so with the
permission of his boss in the law library. See Amen. Compl.
at 19 ¶ 70. However, plaintiff relies entirely on his own
self-serving statements, and cites no evidence in support of
his contention that his boss's alleged permission provided
a valid exception to official DOCCS rules concerning the
use of department letterhead. Consequently, defendants have
established through admissible evidence that Sgt. King would
have issued plaintiff the January 2016 misbehavior report
regardless of whether he harbored retaliatory animus against
plaintiff. See Scott, 344 F.3d at 287-88; Brooks, 2014 WL
1292232, at *18 (citation omitted). Plaintiff's shifting 8 and
conclusory assertions to the contrary fail to raise a genuine
issue of material fact as to his First Amendment retaliation
claim against Sgt. King and are insufficient to overcome
defendants’ documentary case. Flaherty v. Coughlin, 713
F.2d 10, 13 (2d Cir.1983) (“[M]ere conclusory allegations or
denials are insufficient to withstand a motion for summary
judgment once the moving party has set forth a documentary
case”) (internal quotation marks and citation omitted),
overruled on other grounds, Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002); Zembko v. Northwestern Mut. Life
Ins. Co., No. 3:05-CV-918 (AHN), 2007 WL 948323, at *4
n.1 (D. Conn. Mar. 26, 2007) (“[A] nonmovant's self-serving
conclusory statements that dispute the movant's evidence
cannot create material issues of fact to avoid summary
judgment.” (internal quotation marks and citation omitted)).
Based on the foregoing, it is recommended that plaintiff's First
Amendment retaliation claim against Sgt. King be dismissed.
8 The undersigned declines to consider plaintiff's
contention, for the first time in opposition to
defendants’ motion for summary judgment, that
the stationary he used in correspondence with
the FMRC was not official DOCCS letterhead
because it did not contain a certain logo. See
Dkt. No. 193 at 3 ¶ 12; Lyman v. CSX
Transportation, Inc., 364 F. App'x 699, 701 (2d
Cir. 2010) (summary order) (affirming the district
court's determination that it should not consider
claims raised for the first time in opposition to
summary judgment); Auguste v. Department of
Corrections, 424 F. Supp. 2d 363, 368 (D. Conn.
2006) (holding that a plaintiff “cannot amend his
complaint in his memorandum in response to [the]
defendants’ motion for summary judgment”). Nor
is the undersigned inclined to recommend allowing
plaintiff to further amend the complaint to add
new allegations against the defendants at this late
stage in the case. Regardless of whether plaintiff
perfectly reproduced official DOCCS letterhead,
the admissible evidence makes clear that plaintiff
attempted to use official DOCCS letterhead for his
personal correspondence—a violation of DOCCS
rules. See Dkt. No. 178-8 at 6. Therefore, plaintiff's
belated assertions in this regard do not impact
the undersigned's analysis as to plaintiff's First
Amendment retaliation claim against Sgt. King.
b. Capt. Bishop
Plaintiff's First Amendment retaliation claim against Capt.
Bishop based on the January 2016 misbehavior report and
resulting sanctions is premised exclusively on his speculative
assertion that Capt. Bishop instructed Sgt. King to issue
the misbehavior report after he allegedly consulted with
Kowalowski. See Amen. Compl. at 16 ¶ 61.
Defendants’ admissible documentary evidence establishes
that Capt. Bishop, although aware that plaintiff was a member
of the ILC, had no knowledge of the December 9, 2015
memorandum to Assemblyman O'Donnell or the December
16, 2015 proposed ILC agenda; had not read either document;
never discussed either document with Kowalowski; and did
not instruct Sgt. King to issue the January 2016 misbehavior
report. See Dkt. No. 178-4 at 1 ¶ 4, 2-3 ¶¶ 5, 6, 10. Further,
the record is devoid of facts or evidence indicating that
Capt. Bishop made any statements to plaintiff or anyone else
evidencing a retaliatory motive with respect to the January
2016 misbehavior report. See Baskerville, 224 F. Supp.
2d at 732. Moreover, plaintiff's conclusory and speculative
assertion that Capt. Bishop directed Sgt. King to issue
plaintiff the misbehavior report—a contention that both Capt.
Bishop and Sgt. King deny—is insufficient to support a
First Amendment retaliation claim against Capt. Bishop with
respect to the January 2016 misbehavior report. See Dkt. No.
178-4 at 2-3 ¶ 10; Dkt. No. 178-8 at 2 ¶ 6 (Sgt. King's affidavit
stating, “Capt[.] Bishop did not direct me to write the IMR
and .... I did not discuss the 1 st IMR with Capt[.] Bishop
before I wrote it or thereafter.”); see also Henson, 2015 WL
9809874, at *12 (“[C]onclusory statements are not sufficient
to support causation on retaliation claims; the claims must
be supported by specific facts.”). In addition, Kowalowski's
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declaration, in which he states that Capt. Bishop asked him
to write plaintiff a misbehavior report based on plaintiff's use
of DOCCS letterhead does not establish that Capt. Bishop
instructed Sgt. King to issue the January 2016 misbehavior
report, or that Capt. Bishop had retaliatory motive relating to
plaintiff's December 2015 ILC activities. See Dkt. No. 179-3
at 6-7 ¶¶ 43-48. Rather, Kowalowski's declaration establishes,
at most, that Capt. Bishop objected to plaintiff's use of official
DOCCS letterhead, see id. at 7 ¶ 47, which, as explained
above, defendants reasonably believed that plaintiff had used
in violation of DOCCS rules for personal purposes. See Dkt.
No. 178-8 at 2 ¶ 6.
*20 Plaintiff's contention in opposition that Capt. Bishop
“conceded” that he was involved in the issuance of Sgt. King's
January 2016 misbehavior report because Capt. Bishop stated
in his affidavit that he “d[id] not believe [he] ever discussed
[the proposed ILC agenda] with any other defendant in this
case” fails to raise a genuine issue of material fact. Dkt.
No. 193-2 at 12. This cherry-picked statement is taken out
of context, and fails to account for Capt. Bishop's and Sgt.
King's statements that Capt. Bishop did not instruct Sgt.
King to issue plaintiff the January 2016 misbehavior report.
See Dkt. No. 178-4 at 2-3 ¶ 10; Dkt. No. 178-8 at 2 ¶
6. Plaintiff does not proffer any other evidence, admissible
or otherwise, in opposition. See Riehl v. Martin, No. 9:13-
CV-439 (GLS/TWD), 2014 WL 1289601, at *4 (N.D.N.Y.
Mar. 31, 2014) (“The nonmovant must come forward with
admissible evidence sufficient to raise a genuine issue of fact
for trial in order to avoid summary judgment.”). Accordingly,
it is recommended that plaintiff's First Amendment claim
against Capt. Bishop based on the January 2016 misbehavior
report and February 2016 disciplinary hearing be dismissed.
c. Lt. Durkin
Defendants submit Lt. Durkin's sworn affidavit in which
he states that his determination that plaintiff was guilty of
using “DOCCS letterhead for a purpose that was unrelated
to official government business” for “try[ing] to obtain adult
magazines of a sexual nature” was based on his understanding
of DOCCS regulations, and not to retaliate against plaintiff.
Dkt. No. 178-7 at 3 ¶ 15. Further, Lt. Durkin's sworn affidavit
explains that he “did not request to be appointed [as] the
hearing officer” at the February 2016 disciplinary hearing or
“discuss being appointed the hearing officer with any other
[d]efendant.” Id. at 2 ¶¶ 4, 9. Moreover, Lt. Durkin states
that, contrary to plaintiff's contention, he was not “unfamiliar
with the hearing procedures, as [he] had previously served
as a hearing officer on 22 occasions.” Id. at 3 ¶ 11. In
addition, Lt. Durkin denies stating off the record that “the
[February 2016 misbehavior report] was ‘problematic[,]’ ”
or “inform[ing] Kowalowski that [plaintiff] had accused him
of retaliation.” Id. at 3 ¶¶ 12, 13. Plaintiff's conclusory
allegation that Lt. Durkin “railroaded” him by finding him
guilty in retaliation for his December 2015 ILC activities
finds no support in the record and fails to establish that
Lt. Durkin acted with a retaliatory animus against plaintiff.
Amen. Compl. at 17 ¶ 64. Plaintiff's conclusory assertions in
opposition are insufficient to raise a genuine issue of fact to
defeat defendants’ documentary case. See Flaherty, 713 F.2d
at 13; Zembko, 2007 WL 948323, at *4 n.1. Therefore, it
is recommended that plaintiff's First Amendment retaliation
claim against Lt. Durkin be dismissed.
d. Supt. Kirkpatrick
Defendants submit Supt. Kirkpatrick's sworn affidavit, which
explains that, contrary to plaintiff's contention, his decision to
assign Lt. Durkin to preside over the February 2016 hearing
was not unusual or inappropriate, as Lt. Durkin “had not taken
part in investigating the incidents underlying the [January
2016 misbehavior report], ... he had served as hearing officer
on 22 hearings,” and was “not motivated by a desire to
retaliate against [plaintiff] for his participation on the ILC,
or for any other constitutionally protected activity.” Dkt. No.
178-3 at 2 ¶ 8, 4 ¶ 19. Plaintiff's conclusory allegations to
the contrary fails to rebut Supt. Kirkpatrick's sworn affidavit,
which is corroborated by Lt. Durkin's sworn affidavit. See
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998)
(“Conclusory allegations, conjecture and speculation ... are
insufficient to create a genuine issue of fact.”). Consequently,
it is recommended that plaintiff's First Amendment retaliation
claim against Supt. Kirkpatrick based on his decision to
assign Lt. Durkin as the hearing officer at the February 2016
disciplinary hearing be dismissed.
e. Rodriguez
Defendants proffer Rodriguez's sworn affidavit, in which he
states that “[n]one of [his] actions were motivated by an
intent to retaliate against [plaintiff], nor did [he] retaliated
against [plaintiff]. In fact, [he] was not aware that [plaintiff]
had engaged in a constitutionally protected activity at the
time the” misbehavior reports were issued, or the hearings
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were held. Dkt. No. 178-9 at 2 ¶ 3. Thus, as defendants have
submitted admissible documentary evidence that Rodriguez
did not have knowledge of plaintiff's constitutionally
protected activity at the time he made his determinations
with respect to plaintiff's administrative appeal, defendants
have demonstrated that no causal connection exists between
the protected conduct and Rodriguez's actions. See Henson,
2015 WL 9809874, at *12-13; Van Dunk, 2013 WL 5970172,
at *9. Moreover, the record is devoid of evidence, such
as prior interactions or statements made by Rodriguez to
plaintiff or other defendants to Rodriguez indicating that
Rodriguez harbored any retaliatory animus against plaintiff.
See Baskerville, 224 F. Supp. 2d at 732. As defendants
contend, plaintiff's conclusory and speculative assertions to
the contrary do not raise a genuine issue of material fact
sufficient to defeat defendants’ documentary case. See Dkt.
No.178-2 at 17; Flaherty, 713 F.2d at 13; Zembko, 2007
WL 948323, at *4 n.1. Consequently, it is recommended
that plaintiff's First Amendment retaliation claim against
Rodriguez based on the February 2016 disciplinary hearing
and subsequent administrative appeal, be dismissed.
2. March 2016 Disciplinary Proceeding
a. C.O. Breyette and C.O. Tucker
*21 The sworn affidavits of C.O. Breyette and C.O.
Tucker constitute admissible documentary evidence that
establishes that those defendants had no knowledge of
plaintiff's involvement with the Clinton C.F. ILC or that he
had engaged in constitutionally protected activity in his role
as ILC secretary. See Dkt. No. 178-5 at 1 ¶ 3; Dkt. No. 178-10
at 1 ¶ 3. Therefore, defendants have established that neither
C.O. Breyette nor C.O. Tucker had the requisite knowledge
of plaintiff's constitutionally protected activities to sustain a
First Amendment retaliation claim against them. See Henson,
2015 WL 9809874, at *12-13; Van Dunk, 2013 WL 5970172,
at *9. Further, plaintiff does not allege that he had any prior
interaction with C.O. Breyette or C.O. Tucker, or that either
of those defendants made any statements or took any previous
actions evidencing a retaliatory motive. See Baskerville, 224
F. Supp. 2d at 732. In addition, more than two months passed
between plaintiff's constitutionally protected December 2015
ILC activities, C.O. Breyette's and C.O. Tucker's February
28, 2016 search of plaintiff's cell and resulting misbehavior
report; thus, “[p]laintiff has not made a strong showing
temporal proximity in support of his retaliation claim”
against these defendants. Pierrot v. Hahn, No. 9:15-CV-1415
(DNH/CFH), 2017 WL 4221117, at *8 (N.D.N.Y. July
28, 2017), report and recommendation adopted, No. 9:15-
CV-1415 (DNH/CFH), 2017 WL 4221072 (N.D.N.Y. Sept.
21, 2017); see Webster v. Fischer, 694 F. Supp. 2d 163, 183-84
(N.D.N.Y.) (holding that it was “questionable whether the
disciplinary action followed [the] plaintiff's complaints close
enough in time to raise an inference of retaliation” where
“at least two months passed between plaintiff's complaints
and the April 14, 2006 misbehavior reports and the resulting
determination that [the] plaintiff was guilty of the charges,
which was issued at the conclusion of disciplinary hearing on
April 19, 2009”), aff'd, 398 F. App'x 683 (2d Cir. 2010).
Moreover, although Rodriguez reversed plaintiff's guilty
determination on administrative appeal because he “believed,
based upon the location of where the weapon was found,
that it was possible that someone else had placed the weapon
there, not [plaintiff],” Dkt. No. 178-9 at ¶ 29—“no admissible
record evidence exists indicating that the reversal was based
on a finding that the misbehavior report in question was
intentionally false or even unintentionally false.” LeBron,
2010 WL 1235593, at *5 n.9. Indeed, defendants have
established that C.O. Breyette would have issued plaintiff the
misbehavior report regardless of improper retaliatory motive.
See Scott, 344 F.3d at 287-88; Brooks, 2014 WL 1292232,
at *18 (citation omitted). C.O. Breyette and C.O. Tucker
explain that they conducted a search of plaintiff's cell together
on February 28, 2016 because plaintiff “was scheduled to
be transferred to a different facility” and “[i]t is protocol to
search [an] inmate's room when it is being packed.” Dkt. No.
178-5 at 2 ¶¶ 5, 6; Dkt. No. 178-10 at 2 ¶¶ 4, 5. C.O. Breyette
and C.O. Tucker both state that, during the cell search, they
discovered “weapon on the ledge above the metal bars of
the cell. It was a long, thin piece of metal, 7 inches long
and 1/8 inches wide with a sharp point on one end and a
handle on the other[, which] looked a bit like an ice pick.”
Dkt. No. 178-5 at 2 ¶ 8; Dkt. No. 178-10 at 2 ¶ 7. C.O.
Breyette explains that he issued plaintiff the February 2016
misbehavior report because an inmate “possessing a weapon
is a serious violation of the DOCCS policy that endangers
officers and other inmates[,]” and both he and C.O. Tucker
explain that they “were not motivated by a desire to retaliate
against him for his activities on [the ILC], or for any other
constitutionally protected activity[,]” but rather “to maintain
a safe and secure environment at Clinton for both officers
and inmates.” Dkt. No. 178-5 at ¶ 13; Dkt. No. 178-10 at 2
¶ 11. Thus, “[t]he record ... establishes that the misbehavior
report was issued not with retaliatory intent, but simply
because contraband ... was in fact recovered from [p]laintiff's
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cell during that search.” LeBron, 2010 WL 1235593, at *5.
Aside from plaintiff's conclusory allegation in his unverified
Amended Complaint that an unidentified person “planted”
the ice pick in his cell, he advances no arguments and
proffers no evidence, admissible or otherwise, in opposition
to defendants’ motion in this regard. Amen. Compl. at 20 ¶
74; see Dkt. No. Dkt. No. 193-2 at 14-15. Accordingly, it
is recommended that plaintiff's First Amendment retaliation
claims against C.O. Breyette and C.O. Tucker be dismissed.
b. Capt. Devlin
*22 As an initial matter, defendants have submitted Capt.
Devlin's sworn affidavit in which he acknowledges that he
was aware that plaintiff was a member of the Clinton C.F. ILC,
but was unaware that plaintiff authored the December 9, 2015
memorandum to Assemblyman O'Donnell or the December
16, 2015 proposed ILC agenda. See Dkt. No. 178-6 at 2 ¶ 4.
Further, Capt. Devlin denies banging on plaintiff's OMH cell;
saying, ‘What the [f]uck are you still doing here?” or “You'll
see,” in response to plaintiff's statement, “Why did I get 90
days, the maximum sentence for my first non-violent Tier III
[misbehavior report]?” Id. at 2 ¶¶ 7-8; Amen. Compl. at 20
¶ 75. Thus, defendants have established, through admissible
evidence, that, “[a]t the time of the events in question,” Dkt.
No. 178-6 at 1 ¶ 2, 2 ¶ 4, Capt. Devlin lacked knowledge
of plaintiff's constitutionally protected December 2015 ILC
activities, such that he did not make the purported statements
in retaliation for plaintiff's protected conduct. See Henson,
2015 WL 9809874, at *12-13; Van Dunk, 2013 WL 5970172,
at *9. In any event, courts in this circuit have held that more
explicit threats than the vague statements alleged here do not
rise to the level of adverse action sufficient to support a First
Amendment retaliation claim. See Kemp v. LeClaire, No. 03-
CV-844S (WMS), 2007 WL 776416, at *15 (W.D.N.Y. Mar.
12, 2007) (holding that threats from official that the plaintiff's
“day [was] coming,” that he would “be sent to [his] mother
in a black box,” and that he would “get [his] ass kicked”
were insufficient to establish adverse action to support a First
Amendment retaliation claim); Bartley v. Collins, No. 95-
CIV-10616 (RJH), 2006 WL 1289256, at *6 (S.D.N.Y. May
10, 2006) (holding that verbal threats such as “we going to get
you, you better drop the suit” do not rise to level of adverse
action).
Further, Capt. Devlin's lack of knowledge of plaintiff's
constitutionally protected ILC activities undercuts plaintiff's
allegation that Capt. Devlin did not remove the ice pick
from the evidence dropbox within 72 hours so that the
February 2016 misbehavior report could be “fabricated”
in retaliation for plaintiff's constitutionally protected ILC
activities. Amen. Compl. at 23 ¶ 87; See Henson, 2015
WL 9809874, at *12-13Van Dunk, 2013 WL 5970172, at
*9. Indeed, contrary to plaintiff's conclusory allegations, the
record is devoid of facts or evidence supporting plaintiff's
contention that Capt. Devlin's failure to remove the ice pick
from the dropbox within the time period required pursuant
to DOCCS Directive 4910A occurred for any reason aside
from administrative oversight. See Amen. Compl. at 23 ¶ 87.
Moreover, as Capt. Devlin explains in his sworn affidavit,
the fact that the ice pick was not removed from the evidence
dropbox within 72 hours had no impact on plaintiff's March
2016 disciplinary hearing because “no one accessed the
dropbox during th[at] time.” Dkt. No. 178-6 at 3 ¶ 10. Thus,
the admissible evidence demonstrates that Capt. Devlin's
failure to remove the icepick from the evidence drop box
within the 72 hour-period contemplated under DOCCS's
policy does not constitute adverse action and is not causally
related to plaintiff's constitutionally protected activities. In
opposition, plaintiff's speculative and conclusory allegations
that the photograph of the weapon, along with Capt. Devlin's
statements to him on February 29, 2016 “shows the big
picture,” and raises an inference that Capt. Devlin retaliated
against him, Dkt. No. 193-2 at 21, fail to defeat defendants’
documentary case. See Flaherty, 713 F.2d at 13; Zembko,
2007 WL 948323, at *4 n.1. Accordingly, it is recommended
that plaintiff's First Amendment retaliation claim against
Capt. Devlin be dismissed.
c. Capt. Bishop
Plaintiff's First Amendment retaliation claims against Capt.
Bishop relating to the March 2016 disciplinary hearing are
conclusory and belied by defendants’ admissible evidence.
Capt. Bishop's sworn affidavit states that “[n]one of the
actions that [he] took with regard to [plaintiff] had anything
to do with his participation as a member of the ILC[,]” and
“were not motivated by a desire to retaliate against him for his
activities on [the ILC], or any other constitutionally protected
activity.” Dkt. No. 178-4 at 5 ¶ 27. Further, as discussed
above, the March 2016 Tier III hearing and resulting
sanctions occurred more than two months after plaintiff had
engaged authored the December 9, 2015 memorandum to
Assemblyman O'Donnell or drafted the proposed December
16, 2015 ILC memorandum and, therefore, the timeline does
not raise a strong inference of retaliation. See Webster, 694
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F. Supp. 2d at 183-84; Pierrot, 2017 WL 4221117, at *8.
Further, the record is devoid of statements Capt. Bishop
made to plaintiff that could evidence that Capt. Bishop
found plaintiff guilty of weapons possession based on a
retaliatory animus. See Baskerville, 224 F. Supp. 2d at 732.
Moreover, although Capt. Bishop's March 2016 Tier III
disciplinary decision was ultimately reversed on plaintiff's
administrative appeal because Rodriguez “believed, based
upon the location of where the weapon was found, that it was
possible that someone else had placed the weapon there, not
[plaintiff],” the record is devoid of evidence indicating that
Rodriguez reversed that determination because a review of
the proceeding evidenced that Capt. Bishop's determination
was influenced by or premised on a retaliatory motive.
Indeed, the sworn affidavits of C.O. Breyette and C.O. Tucker
establish, the icepick was recovered from plaintiff's cell
on February 28, 2016, see Dkt. No. 178-5 at 2 ¶ 8; Dkt.
No. 178-10 at 2 ¶ 7, and, based on that evidence, Capt.
Bishop concluded that plaintiff was guilty of possessing a
weapon in violation of DOCCS rule 113. Dkt. No. 178-4
at 5 ¶ 27. Therefore, defendants have established that Capt.
Bishop would have found plaintiff guilty of the charges
in the February 2016 misbehavior report and imposed the
resulting sanctions regardless of any retaliatory motive. See
Scott, 344 F.3d at 287-88; Brooks, 2014 WL 1292232, at
*18 (citation omitted). Thus, aside from plaintiff's conclusory
allegations, nothing before the undersigned suggests that
plaintiff's constitutionally protected ILC activities were “a
substantial or motivating factor” in any of Capt. Bishop's
actions relating to the March 2016 disciplinary hearing and
resulting sanctions. Burton, 664 F. Supp. 2d at 367.
*23 Similarly, no inference of retaliation concerning
Capt. Bishop may be inferred based on plaintiff's filing
of Grievance CL-68902-16. Plaintiff's grievance challenged
the guilty determination from his February 2016 Tier
III disciplinary hearing relating to his use of DOCCS
letterhead. See Dkt. No. 25-1 at 4-6. Plaintiff only mentions
Capt. Bishop in this grievance for the proposition the
January 2016 misbehavior report was issued in error, as
purportedly evidenced by the fact that Capt. Bishop, along
with other DOCCS personnel, had “received letters from
[plaintiff] on various topics, on [DOCCS] letterhead” prior
to plaintiff using that letterhead in his correspondence
with Hollmen. Dkt. No. 25-1 at 5. Plaintiff does not
allege any wrongdoing against Bishop in the grievance,
which was lodged against Kowalowski for his alleged
involvement with the first misbehavior report “in retaliation
for [plaintiff] requesting the name of the ILC Advisor
in Albany Central Office while responding to [the] letter
from ... Hollmen.” Id. at 4. Indeed, the only relief sought
through that grievance was reversal and expungement of
his February 2016 disciplinary determination. Id. at 4. As
the IGRC's decision denying the grievance made clear,
plaintiff's grievance was not an appropriate “substitute appeal
mechanism. An individual decision or disposition resulting
from a disciplinary proceeding is not grievable.” Id. at 7.
Moreover, the record is devoid of facts that would allow the
Court to draw the “legitimate inference” that Capt. Bishop
retaliated against plaintiff based on his grievance filed against
Kowalowski. Espinal, 558 F.3d at 130; see Wright v. Goord,
554 F.3d 255, 274 (2d Cir. 2009) (dismissing a retaliation
claim against a correction officer where the only alleged
basis for retaliation was a complaint written against another
officer); see also Burroughs v. Mitchell, 325 F. Supp. 3d 249,
282 (N.D.N.Y. 2018) (“As a general matter, it is difficult to
establish one defendant's retaliation for complaints against
another defendant.” (internal quotation marks and citation
omitted)). In any event, plaintiff does not allege that Capt.
Bishop was aware that he was mentioned in the grievance,
or that he took adverse action based on that grievance, but
instead, conclusorily alleges that “[j]ust two (2) days” after his
grievance was filed by IGP Supervisor Gregory on February
26, 2016, some unidentified individual(s) “planted” the
icepick in his cell. See Amen. Compl. at 20 ¶ 74. Accordingly,
it is recommended that plaintiff's First Amendment retaliation
claim against Capt. Bishop relating to the March 2016
disciplinary hearing be dismissed.
d. Supt. Kirkpatrick, Supt.
Uhler, Venettozzi, and Rodriguez
Even affording the Amended Complaint the most liberal
construction possible, plaintiff does not allege any specific
claims of retaliation against Supt. Kirkpatrick, Supt. Uhler,
Venettozzi, and Rodriguez. See Amen. Compl. at 20-42.
Rather, plaintiff's retaliation claims insofar as asserted against
these defendants, are premised exclusively on their purported
involvement in the alleged conspiracy against him based on
his December 2015 ILC activities. See id. Thus, as plaintiff
has only conclusorily alleged that Supt. Kirkpatrick, Supt.
Uhler, Venettozzi, and Rodriguez retaliated against him, he
has failed to meet his “heightened burden” in establishing a
First Amendment retaliation claim because has not pleaded
his claim against these defendants “with particularity.”
Green, 2006 WL 846272, at *3 (citing Brown, 41 F. Supp.
2d at); Williams, 111 F. Supp. 2d at 290. Moreover, as
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discussed in detail below, plaintiff's Section 1983 conspiracy
claims lack merit and are belied by defendants’ admissible
evidence. Consequently, it is recommended that plaintiff's
First Amendment retaliation claims based on the March 2016
disciplinary hearing against Supt. Kirkpatrick, Supt. Uhler,
Venettozzi, and Rodriguez be dismissed.
3. Kowalowski
Kowalowski is entitled to summary judgment dismissing
plaintiff's First Amendment retaliation claim. As to plaintiff's
contention that Kowalowski retaliated against him through
his comment that ILC inmates “all have a target on your
back, be careful,” Kowalowski has established through his
sworn declaration that he made that comment to the entire
ILC, as he did with each new ILC class, in order to give them
awareness that their status could draw heightened attention
from staff and other inmates. Amen. Compl. at 12 ¶ 44;
see Dkt. No. 179-3 at 2 ¶ 7. Further, to sustain a First
Amendment retaliation claim, a plaintiff's constitutionally
protected conduct must be a “a substantial or motivating
factor in the prison official's decision to take action against
him.” Burton v. Lynch, 664 F. Supp. 2d 349, 367 (S.D.N.Y.
2009) (internal quotations, brackets, and citations omitted).
Here, however, Kowalowski's comment at the November
2015 ILC meeting was, “by definition—unconnected to”
plaintiff's constitutionally protected ILC conduct that took
place in December 2015—as Kowalowski made the comment
before plaintiff had engaged in that conduct. Richard v.
Fischer, 38 F. Supp. 3d 340, 357 (W.D.N.Y. 2014) (internal
quotation marks and citation omitted); see Dkt. No. 179-4
at 8-9. Moreover, plaintiff's allegation that, on January 6,
2016, “Kowalowski violently snatched a piece of paper
out of [plaintiff's] hand which listed ... new proposed TV
channels,” and stated, “I took it, so what. You are not as
important as you think you are[,]” Amen. Compl. at 15 ¶
56, fails to establish a claim of First Amendment retaliation.
Even accepting plaintiff's allegations as true, Kowalowski's
actions and comments in this regard amount to, at most,
“harassing comments and hostile behavior [that] do not
constitute adverse actions sufficient to state a retaliation
claim.” Quezada v. Roy, No. 14-CV-4056(CM), 2015 WL
5970355, at *21 (S.D.N.Y. Oct. 13, 2015) (citation and
internal quotation marks omitted). In any event, plaintiff's
own documentary evidence belies his assertion. Specifically,
plaintiff submits the January 8, 2016 ILC's letter to Supt.
Kirkpatrick, in which the ILC complains that Kowalowski
would not show the ILC Clinton C.F.’s contract with
Charter Cable, but does not raise any complaints concerning
Kowalowski's purported threats and plaintiff does not contend
that he ever filed a grievance or made any other complaint
about this incident. See Dkt. No. 25-1 at 143.
*24 Further, Kowalowski denies threatening plaintiff with
SHU confinement in retaliation for plaintiff including
complaints about assault by staff in his proposed December
2015 ILC agenda. See Dkt. No. 179-4 at 9. Plaintiff's claim
in this regard fails for several reasons. First, Kowalowski
states, in his sworn affidavit, that he never read the contents
of the proposed ILC agenda, and that when he instructed
plaintiff not to submit the proposed agenda, he was simply
relaying a directive from Supt. Kirkpatrick that the Clinton
C.F. administration would no longer accept ILC agendas
longer than one page or containing more than four or five
individual items. See Dkt. No. 179-3 at 4 ¶ 21. He explains
that he did not threaten plaintiff with 270 days in SHU,
as he believed, at most, plaintiff's submission of a five-
page ILC agenda would result in Clinton C.F. cancelling
the ILC meeting. See id. at 5-6 ¶ 27. Next, plaintiff's
own documentary evidence belies his claim. For instance,
in his January 11, 2016 letter to Assemblyman O'Donnell,
plaintiff stated only that Kowalowski objected to the proposed
agenda's length and the highlighting of prison administrator's
names, and indicated that “the real reason why [Kowalowski]
was upset” was because the proposed agenda “talk[ed] about
misrepresentation and/or misappropriation of $10,000 in ILC
fundraiser money, violating [DOCCS] Directive 2771.” Dkt.
No. 25-1 at 124. Conspicuously missing from plaintiff's
January 11, 2016 letter is any mention that Kowalowski
objected to the contents of the proposed agenda, and makes no
mention of Kowalowski taking issue with plaintiff's inclusion
of complaints against staff or instructing plaintiff to “water
down” the agenda. Dkt. No. 179-3 at 4-5 ¶¶ 26-28 (citing
Amen. Compl. at 15 ¶ 55); see Dkt. No. 25-1 at 123-26.
Moreover, the evidence in the summary judgment record
establishes that Kowalowski did not issue the January 2016
misbehavior report, was not involved with Sgt. King's
decision to issue the misbehavior report relating to plaintiff's
use of DOCCS letterhead, and did not participate in the
February 2016 disciplinary hearing. See Dkt. No. 179-3 at
7 ¶¶ 47-48, 53, 54. Indeed, Kowalowski “did not personally
review [plaintiff's] magazine[ ]” in his capacity as co-chair
of the FMRC, and did not approve the FMRC's decision
concerning plaintiff's magazine in retaliation for plaintiff's
ILC activities, but rather, because the magazine at issue
contained prohibited content. Id. at 6 ¶ 39; see id. at ¶¶ 36, 40.
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Plaintiff's conclusory assertions in opposition are insufficient
to defeat Kowalowski's documentary case in support of
summary judgment. Flaherty, 713 F.2d at 13; Zembko, 2007
WL 948323, at *4 n.1.
In addition, the undersigned concludes that plaintiff's reliance
on inmate Emerenciano's SHU sentence and lawsuit against
Kowalowski is unpersuasive. As Kowalowski avers, see Dkt.
No. 196 at 5,6, plaintiff has not proffered any evidence to
establish a causal connection between underlying facts of
inmate Emercenciano's case and the present action. Indeed,
Kowalowski's sworn declaration establishes that he did not
threaten plaintiff with 270 days in SHU, see Dkt. No. 179-4
at 5-6 ¶ 27, and the uncontroverted evidence establishes
that plaintiff never received a 270-day SHU sentence.
Although plaintiff has sought to supplement his pleadings in
his response in opposition, his speculative and conclusory
assertions fail to rebut Kowalowski's admissible evidence.
See Perez v. New York City Dep't of Corr., No. 10-CV-2697
(RRM/RML), 2012 WL 3704744, at *3 (E.D.N.Y. Aug. 27,
2012) (rejecting the plaintiff's reliance on incidents involving
other inmates to support a constitutional claim against the
New York City Dept. of Corrections, reasoning that the
plaintiff had not “allege[d] anything other than his own
conclusory statements to suggest that there [wa]s any causal
connection between the alleged incidents and the alleged
deprivation of [the] plaintiff's constitutional rights.” (citation
omitted)). Consequently, it is recommended that plaintiff's
First Amendment retaliation claims against Kowalowski be
dismissed.
C. Section 1983 Conspiracy - February
2016 Disciplinary Proceeding
In order to support a claim for conspiracy pursuant to § 1983,
there must be “(1) an agreement ...; (2) to act in concert to
inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Ciambriello
v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002);
Cusamano v. Sobek, 604 F. Supp. 2d 416, 468 (N.D.N.Y.
2009). “An agreement must be proven with specificity as bare
allegations of a conspiracy supported only by allegations of
conduct easily explained as individual action is insufficient.”
McRae v. Fischer, No. 9:17-CV-0146 (BKS/CFH), 2018
WL 3432743, at *6 (N.D.N.Y. June 6, 2018), report and
recommendation adopted, No. 9:17-CV-00146 (BKS/CFH),
2018 WL 3432700 (N.D.N.Y. July 16, 2018). Although exact
specifics are not required, “the pleadings must present facts
tending to show agreement and concerted action.” Anilao v.
Spota, 774 F. Supp. 2d 457, 512-13 (E.D.N.Y. 2011) (citations
omitted). Conclusory, vague, and general allegations are
insufficient to support a conspiracy claim. See Ciambriello,
292 F.3d at 325. Where “there is no underlying constitutional
violation, there can be [no] § 1983 cause of action for
conspiracy.” Bibeau v. Soden, No. 8:08-CV-0671 (LEK/
RFT), 2009 WL 701918, at *8 (N.D.N.Y. Mar. 13, 2009);
see also Taylor v. New York Dep't of Corr. Servs., No. 9:10-
CV-140 (MAD/RFT), 2012 WL 913678, at *9 (N.D.N.Y.
Feb. 23, 2012) (“[T] he failure of a plaintiff to show an
underlying constitutional violation on which to base a section
1983 conspiracy claim means the conspiracy claims fails as
a matter of law.”), report and recommendation adopted sub
nom. Taylor v. New York Dep't of Corr., No. 9:10-CV-140
(MAD/RFT), 2012 WL 913564 (N.D.N.Y. Mar. 16, 2012).
*25 First, as plaintiff has failed to establish a First
Amendment retaliation claim against any defendant based
on the January 2016 misbehavior report and February 2016
disciplinary hearing, he has “failed to show an underlying
constitutional violation on which to base his section 1983
conspiracy claim” and, therefore, his “conspiracy claim
fails as a matter of law.” Taylor, 2012 WL 913678, at
*9; Bibeau, 2009 WL 701918, at *8. Alternatively, even
assuming plaintiff could establish a retaliation claim, the
Amended Complaint and supporting documentary evidence
is bereft of “facts tending to show agreement and concerted
action.” Anilao, 774 F. Supp. 2d at 512-13. Indeed, as set
forth in detail above, plaintiff's claims in this regard consist
exclusively of “bare allegations of a conspiracy,” McRae,
2018 WL 3432743, at *6, which he fails to support with
any specific facts or evidence demonstrating that defendants
engaged in a meeting of the minds, “such as time, place, or
manner in which ... defendants conspired against plaintiff”
to violate his rights with respect to the events surrounding
the February 2016 disciplinary proceeding. Avent v. Reardon,
No. 1:19-CV-1565 (GTS/CFH), 2020 WL 7705938, at *7
(N.D.N.Y. Dec. 28, 2020).
Capt. Bishop's, Sgt. King's, Lt. Durkin's, Supt. Kirkpatrick's,
and Rodriguez's sworn affidavits, and Kowalowski's sworn
declaration establish that those defendants did not enter into
an agreement to act in concert to retaliate against plaintiff
—which no evidence in the summary judgment record
controverts. See Ciambriello, 292 F.3d 307, 324-25. Plaintiff's
allegations that Capt. Bishop directed Sgt. King to issue the
January 2016 misbehavior report is belied by defendants’
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admissible evidence. In his sworn affidavit, Sgt. King states
that
Capt[.] Bishop did not direct me
to write the IMR and I did not
use a “false” [misbehavior report]
because Capt[.] Bishop told me to.
I authored a truthful [misbehavior
report] because I believed (and
still believe) that [plaintiff] violated
DOCCS policy by attempting to use
his status as a law library clerk to
use DOCCS letterhead for personal
correspondence.... I did not discuss
the [January 2016 misbehavior report]
with Capt[.] Bishop before I wrote it or
thereafter.
Dkt. No. 178-8 at 2 ¶ 6. Capt. Bishop's sworn affidavit
corroborates Sgt. King's sworn affidavit, as Capt. Bishop
explains that he “did not direct Sgt. King to write this
[misbehavior report]” and he “did not have any personal
involvement in the issuance of th[is] misbehavior report or
the [February 2016 disciplinary] hearing.” Dkt. No. 178-4 at
2 ¶ 9.
Further, plaintiff's contention that Supt. Kirkpatrick conspired
with Lt. Durkin to find plaintiff guilty of the charges in the
January 2016 misbehavior report fails. Supt. Kirkpatrick's
states in his sworn affidavit that his “decision to assign
[Lt.] Durkin as the hearing officer on the [January 2016
misbehavior report] was not motivated by a desire to retaliate
against [plaintiff] for his participation on the ILC,” Dkt. No.
178-13 at 4 ¶ 19, and that his “assign[ment of] Lt.[ ] Durkin as
the hearing officer .... was appropriate as [Lt. Durkin] had not
taken part in investigating the incidents underlying the [first
misbehavior report], and had served as hearing officer on 22
hearings.” Id. at 2 ¶ 8. Lt. Durkin states that he never discussed
plaintiff's involvement on the ILC with any other defendant
in this action, and that he “did not request to be appointed [as]
the hearing officer” or “discuss being appointed the hearing
officer with any other [d]efendant.” Dkt. No. 178-7 at 2 ¶¶
4, 9.
Moreover, Rodriguez's sworn affidavit establishes that he
“did not work at ... Clinton [C.F.] and was not personally
involved with the issuance of either Inmate Misbehavior
Report ... in this case. Nor was [he] involved with the
hearings, other than to review [plaintiff's] appeals from their
decisions.” Dkt. No. 178-9 at 1-2 ¶ 3. Rodriguez also denies
discussing this case with any other defendant aside from
Venettozzi, who worked in the same office, and posits that
he has “no memory of speaking with ... Venettozzi about
this case during the relevant time period.” Id. at 4 ¶ 3.
In addition, although Kowalowski states that Capt. Bishop
discussed plaintiff's use of letterhead with him during a
January 2016 meeting, Kowalowski states that, while he
“subsequently learned that [Sgt.] King wrote a misbehavior
report against [plaintiff] relating to the letterhead[,]” he did
not encourage Sgt. King or any other DOCCS personnel to
write a misbehavior report, did not participate in any way in
the February 2016 Tier III disciplinary hearing, id. at ¶ 53,
and was not referenced in the January 29, 2016 misbehavior
report. See Dkt. No. 179-4 at 17.
*26 In opposition, to the extent plaintiff attempts to
controvert defendants’ admissible evidence concerning
his conspiracy allegations relating to the February 2016
disciplinary hearing, plaintiff advances only conclusory
assertions. Plaintiff's contention that “[t]he fact that Sgt.
King conspired and retaliated against [him] is not defeated
because Sgt. King did not know about the Dec. 9 th letter
or the Dec. 16 th Agenda, as his lack of knowledge of this
memo and agenda did not prevent him from conspiring and
retaliating[,]” Dkt. No. 193-2 at 12, is wholly conclusory and
unsupported by any admissible evidence. Thus, plaintiff has
failed to raise a genuine issue of material fact sufficient to
defeat defendants’ documentary case. See Flaherty, 713 F.2d
at 13; Zembko, 2007 WL 948323, at *4 n.1. Accordingly,
it is recommended that plaintiff's Section 1983 conspiracy
claim against Capt. Bishop, Sgt. King, Lt. Durkin, Supt.
Kirkpatrick, and Rodriguez relating to the February 2016
disciplinary hearing be dismissed.
D. Procedural Due Process Claims Against Capt. Bishop
Relating to the March 2016 Disciplinary Hearing
“To state a claim for procedural due process, there must
first be a liberty interest which requires protection.” Lewis
v. Murphy, No. 9:12-CV-00268 (NAM/CFH), 2014 WL
3729362, at *7 (N.D.N.Y. July 25, 2014) (citing Valmonte
v. Bane, 18 F.3d 992, 998 (2d Cir. 1994)). To establish a
procedural due process claim under § 1983, a plaintiff must
show that he (1) possessed a liberty interest, and (2) was
deprived of that interest without being afforded sufficient
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process. See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir.
2004). “Prison discipline implicates a liberty interest when
it ‘imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.’ ” Id.
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). As
to the first factor, “[t]he prevailing view in this [C]ircuit is
that, by its regulatory scheme, the State of New York has
created a liberty interest in remaining free from disciplinary
confinement.” Liao v. Malik, No. 9:13-CV-1497 (GTS/DEP),
2016 WL 1128245, at *4 (N.D.N.Y. Feb. 26, 2016) (collecting
cases). As to the second factor, the plaintiff bears the “burden
of proving that the conditions of his confinement constituted
an atypical, significant hardship in relation to the ordinary
incidents of prison life in order to recover damages” under
§ 1983. Vasquez v. Coughlin, 2 F. Supp. 2d 255, 260
(N.D.N.Y. 1998). Although there are no bright-line rules for
this inquiry, the Second Circuit has advised district courts that
SHU confinements of fewer than 101 days, “could constitute
atypical and significant hardships if the conditions were more
severe than the normal SHU conditions ... or [the] record
showed that even relatively brief confinements under normal
SHU conditions were, in fact, atypical.” Palmer v. Richards,
364 F.3d 60, 65 (2d Cir. 2004); see Ortiz, 380 F.3d at 654 (“To
be sure, with respect to ‘normal’ SHU confinement, we have
held that a 101–day confinement does not meet the Sandin
standard of atypicality.” (quoting Sealey v. Giltner, 197 F.3d
578, 589 (2d Cir. 1999)).
Here, defendants aver—and plaintiff does not dispute—that
plaintiff served a total of 92 days in SHU as a result of both the
February and March 2016 disciplinary determinations. See
Dkt. No. 178-2 at 26; Dkt. No. 178-12 at 2 ¶ 12; see id. at
7-8 (exhibit A to Supt. Kirkpatrick's, listing a chronological
history of plaintiff's SHU confinement). Thus, plaintiff's SHU
confinement, alone, is insufficient to establish atypicality. See
Ortiz, 380 F.3d at 654. Where, as here, the SHU confinement
“was not long enough to constitute an atypical and significant
deprivation by itself,” the undersigned must “look to the
conditions of confinement” to determine whether a due
process violation has occurred. Smith v. Hamilton, 9:15-
CV-0496 (BKS/ATB), 2016 WL 3823395, at *3 (N.D.N.Y.
July 12, 2016) (quoting Palmer, 364 F.3d at 66).
*27 In opposition to defendants’ motion for summary
judgment—citing only to his unverified Amended Complaint
—plaintiff contends that his 92-day stint in SHU constituted
“atypical and significant hardship” because, for the first four
days, he did not have his high blood pressure medicine or
a change of clothes, and was “denied a time cut and PIMS
level 2.” Dkt. No. 193-2 at 25. As defendants aver, see Dkt.
No. 195 at 14, the portion of the Amended Complaint that
plaintiff relies on in support of his contention that he was
deprived his blood pressure medicine and a change of clothes,
demonstrates that these alleged deprivations occurred prior
to the February 2016 disciplinary hearing and relate, instead,
to plaintiff's placement in a keep-lock cell on January 29,
2016—not as a result of the February 2016 misbehavior
report or March 2016 disciplinary hearing. See Amen. Compl.
at 16, 17 ¶¶ 61, 62. Therefore, plaintiff cannot establish
a due process claim relating to his January 2016 keeplock
confinement based on Capt. Bishop's guilty determination
at the March 2016 disciplinary hearing. Further, insofar
as plaintiff contends that he was denied a PIMS level
two classification, his due process claim fails “[b]ecause
the PIMS ..., like any security classification ... does not
create a liberty interest protected by due process.” Cicio
v. Williams, No. 9:11-CV-1196 (TJM), 2013 WL 3101692,
at *5 (N.D.N.Y. June 18, 2013). In any event, plaintiff
has offered no evidence in support of these belated and
conclusory allegations—made for the first time in opposition
to defendants’ motion for summary judgment; therefore,
plaintiff has failed to establish that he experienced atypical
and significant hardship during his 92-day confinement in
SHU. See Palmer, 364 F.3d at 65; see also Kerzer, 156 F.3d at
400 (“Conclusory allegations, conjecture, and speculation ...
are insufficient to create a genuine issue of fact.”); Cusamano
v. Sobek, 604 F. Supp. 2d 416, 492 (N.D.N.Y. 2009) (“[W]hile
special solicitude permits a pro se plaintiff to effectively
amend the allegations of his complaint while responding to a
motion to dismiss for failure to state a claim (which, typically,
comes relatively early in an action), it does not permit him to
do so while responding to a motion for summary judgment
(which, typically, comes relatively late in an action, for
example, where, as here, after the defendants have completed
discovery based on the allegations contained in the plaintiff's
complaint.”).
In addition, it is well settled that the loss of packages,
commissary, and phone privileges does not establish an
atypical or significant hardship. See Vega v. Artus, 610 F.
Supp. 2d 185, 200 (N.D.N.Y. 2009) (“ ‘[T]he loss of phone,
package, and commissary privileges does not give rise to a
protected liberty interest under New York law.’ ” (internal
quotation marks and citation omitted)); McEachin v. Selsky,
No. 9:04-CV-0083 (FJS/RFT), 2010 WL 3259975, at *9
(N.D.N.Y. Mar. 30, 2010) (“It is expected that confinement
in SHU will be accompanied by a loss of privileges that
prisoners in the general population enjoy and such conditions
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fall ‘within the expected parameters of the sentence imposed
by a court of law.’ ”) (quoting Frazier v. Coughlin, 81
F.3d 313, 317 (2d Cir. 1996)); see also Borcsok v. Early,
No. 9:03-CV-395 (GLS/RFT), 2007 WL 2454196, at *9
(N.D.N.Y. 2007) (holding that a 90–day confinement in
SHU alone with 90–day loss of packages, commissary
and telephone privileges was insufficient to raise a liberty
interest where plaintiff made no showing that the conditions
of confinement were atypical or constituted a significant
hardship). Consequently, as plaintiff has failed to establish
that the conditions of his confinement in SHU constituted
an atypical and significant hardship, it is recommended that
plaintiff's due process claims be dismissed on that basis alone.
Moreover, defendants are entitled to summary judgement
dismissing plaintiff's specific procedural due process claims
relating to Capt. Bishop's conduct as the hearing officer at
the March 2016. The Due Process Clause of the Fourteenth
Amendment states: “[n]o State shall ... deprive any person
of life, liberty, or property without due process of law.” U.S.
CONST. amend. XIV § 1. “A liberty interest may arise from
the Constitution itself, ... or it may arise from an expectation
or interest created by state laws or polices.” Wilkinson v.
Austin, 545 U.S. 209, 221 (2005) (internal citations omitted).
“Although prison inmates necessarily have their liberty
severely curtailed while incarcerated, they are nevertheless
entitled to certain procedural protections when disciplinary
actions subject them to further liberty deprivations such as
loss of good-time credit or special confinement that imposes
an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir.
2004) (citations omitted).
The constitutionally mandated due process requirements for
prison disciplinary hearings include (1) written notice of the
charges to the inmate; (2) the opportunity to appear at a
disciplinary hearing and a reasonable opportunity to present
witnesses and evidence in support of his defense, subject to
a prison facility's legitimate safety and penological concerns;
(3) a written statement by the hearing officer explaining his
decision and the reasons for the action being taken; and (4)
in some circumstances, the right to assistance in preparing
a defense. See Wolff v. McDonald, 418 U.S. 539, 564-70
(1974); Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004).
*28 The due process clause of the Fourteenth Amendment
also guarantees that “[a]n inmate subject to a disciplinary
hearing is entitled to ... an impartial hearing officer.” Allen
v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing Wolff,
418 U.S. at 570-71). “Due process in this context requires
only that the hearing officer's decision not be ‘arbitrary.’ ”
Kimbrough v. Fischer, No. 9:13-CV-0100 (FJS/TWD), 2014
WL 12836864, at *4 (N.D.N.Y. Oct. 21, 2014) (quoting
Wolff, 418 U.S. at 571), report and recommendation adopted,
No. 9:13-CV-100 (FJS/TWD), 2016 WL 660919 (N.D.N.Y.
Feb. 18, 2016). A decision is not “arbitrary” if it is
supported by “some evidence.” Superintendent v. Hill, 472
U.S. 445, 455 (1985). “This standard is extremely tolerant
and is satisfied ‘if there is any evidence in the record
that supports’ the disciplinary ruling.” Sira, 380 F.3d at 69
(quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d
Cir. 2000)). “[O]nly ‘reliable’ evidence can constitute ‘some
evidence.’ ” Id. at 76 (quoting Luna, 356 F.3d at 488). “The
subsequent modification of [plaintiff's] determination during
the administrative appeals process ... does not impact the due
process analysis,” and “[t]he outcome of an administrative
appeal or a state court proceeding does not, by itself, resolve
the question of whether a constitutional violation occurred.”
Alexander v. Fischer, No. 9:14-CV-548 (GLS/ATB), 2015
WL 10568892, at *4 (N.D.N.Y. Dec. 21, 2015) (citing Walker
v. Bates, 23 F.3d 652, 657 (2d Cir. 1994) (additional citations
omitted), report and recommendation adopted, No. 9:14-
CV-548(GLS/ATB), 2016 WL 1261124 (N.D.N.Y. Mar. 30,
2016).
Here, plaintiff does not allege that he did not receive
timely written notice of the charges against him; was not
offered employee assistance to prepare for his Tier III
disciplinary hearing; or that Capt. Bishop did not issue a
written decision that included the evidence he relied on and
his reasoning for his ultimate disposition. See Amen. Compl.
at 22-23. Therefore, plaintiff's claims are limited to whether
Capt. Bishop acted impartially; deprived plaintiff of certain
evidence he requested at the March 2016 disciplinary hearing;
erred in reaching certain conclusions based on the evidence
elicited at the hearing. See id. at 22 ¶ 84, 23 ¶ 87.
Plaintiff's Amended Complaint, read liberally, contends that
Capt. Bishop was not an impartial hearing officer because
he was involved in the underlying incident giving rise to the
March 2016 disciplinary hearing he presided over as hearing
officer since his name appears on the UIR relating to the
discovery of an icepick in plaintiff's cell on February 28,
2016. See Amen. Compl. 22 ¶ 84. Plaintiff also relies on his
retaliation claim that Capt. Bishop “conspired with [Supt.]
Ulher of [Upstate C.F.], a former [c]aptain of [s]ecurity at
[Clinton C.F.] in 2008[,] to be assigned as the hearing officer
at [Upstate C.F.] to hold [the] hearing, even though [Upstate
C.F.] employs a full-time ... Hearing Officer ...” to establish
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that Capt. Bishop was not a fair and impartial hearing
officer. Id. However, defendants proffer Capt. Bishop's sworn
affidavit in which he states that [he] did not draft [the]
UIR or investigate the claims within it” and that his “name
was listed on the UIR as the ‘person reporting’ because,
as a matter of course, the Captain's name was listed on all
UIRs.” Dkt. No. 178-4 at 3 ¶ 14. Supt. Kirkpatrick's sworn
affidavit further explains that “Bishop did not investigate
the incident giving rise to the March 2016 misbehavior
report,]” and that Capt. Bishop's “name is listed on the UIR
simply because the [c]aptain's name is listed on the UIR as
a matter of course.” Dkt. No. 178-13 at 3 ¶ 16. Moreover,
Supt. Kirkpatrick's sworn affidavit establishes the paperwork
procedure for how UIRs are processed. See id. at ¶ 17.
In particular, Supt. Kirkpatrick's sworn affidavit establishes
that a captain reviews the UIR forms to make sure they are
properly completed, but that the captain is not “considered to
have ‘investigated’ the incident merely by being part of this
chain of review.” Id. Moreover, Supt. Kirkpatrick's and Capt.
Bishop's sworn affidavits establishes that it was “common
procedure and courtesy” for Capt. Bishop to preside over the
March 2016 disciplinary hearing even though the hearing was
held at Upstate C.F., because the incident giving rise to the
proceeding—the discovery of the icepick in plaintiff's cell
—occurred at Clinton C.F. Dkt. No. 178-13 at 3 ¶ 13; see
Dkt. No. 178-4 at 3 ¶ 16. In addition, the sworn affidavits
of Supt. Kirkpatrick, Capt. Bishop, and Supt. Uhler, establish
that Supt. Kirkpatrick, as part of his duties as superintendent
of Clinton C.F., independently assigned Capt. Bishop to serve
as the hearing officer at the March 2016 disciplinary hearing
—without engaging any prior discussions of the assignment
with Capt. Bishop or Supt. Uhler. See id.; see Dkt. No. Dkt.
No. 178-11 at 2 ¶ 6; Dkt. No. 178-4 at 13 ¶ 16. Thus,
defendants have established through admissible evidence
that Capt. Bishop was not appointed to serve as hearing
officer for the purpose of ensuring a finding of guilt and
that he was not involved in the investigation relating to the
charges contained in the February 2016 misbehavior report.
Plaintiff's conclusory arguments in opposition, which amount
to only reassertions of the claims contained in his unverified
Amended Complaint, see Amen. Compl. 22 ¶ 84; Dkt. No.
193-2 at 21, fail to raise a genuine issue of material fact.
*29 Next, plaintiff alleges that Capt. Bishop violated his
procedural due process rights by declining to grant him access
to “requested ... E-Block (Unit) log book entries from 9:00
a.m. on February 28, 2016, until 5:00 p.m., on March 1,
2016,” and provided him only with log book entries from
February 28, 2016. Amen. Compl. at 23 ¶ 87; see id. at 24 ¶
89. Plaintiff notes that the handwritten date contained on the
photograph of the icepick recovered from his cell on February
28, 2016, was dated February 29, 2016, and that non-party
C.O. Stiles recorded the weapon “as being photographed on
February 29[,] 2016.” Id. at 23 ¶ 87. Plaintiff believes that
the logbook entries for the days before and after February 28,
2016, were relevant to his defense at the hearing because “the
evidence drop box log book [ ] [did not] have a date [ ] when
the evidence was entered into the drop box,” and he “feel[s]
this evidence wasn't logged in on February 28, 2016, and
[that] without seeing the previous ... and the forward pages,
[he was not] able to identify whether or not it was logged in at
the time.” Id. at 24 ¶ 90. Plaintiff relies on the inconsistency
between the date of the February 28, 2016 misbehavior report
and the date on the photograph of the weapon in support of his
contention that, on “February 29[ ], 2016, [ ]Capt[.] Devlin
conspired with Capt. Bishop to fabricate the [February 28,
2016 misbehavior report].” Id. at 23 ¶ 87.
Capt. Bishop's sworn affidavit establishes that the
handwritten date of February 29, 2016, contained under the
photograph of the weapon, was due solely to a clerical error
and is not relevant to the weapons charge that formed the basis
of the February 2016 misbehavior report. See Dkt. No. 178-2
at 28; Dkt. No. 178-4 at 4 ¶ 22. As plaintiff acknowledges, he
“questioned” the inconsistency at the hearing by asking Sgt.
Baker, “[d]id you drop the ... weapon in the box the same date
that you ... wrote the memo?” to which Sgt. Baker replied, “ ‘It
was on the same day.’ ” Amen. Compl. at 24-25 ¶ 93 (quoting
Dkt. No. 25-2 at 51). As Capt. Bishop explains, on March
29, 2016, the last day of the March 2016 disciplinary hearing,
he questioned Sgt. Baker, who stated that the correct date
on which the weapon was recovered and photographed was
February 28, 2016, and that the handwritten date contained
on the photograph was a “clerical error.” Id. at 5 ¶ 23.
Moreover, Capt. Bishop noted that, between the second and
third days of the March 2016 disciplinary hearing, Sgt. Baker
reviewed his attendance records, which indicated that he
was not working on February 29, 2016, but was working
on February 28, 2016, and that he had photographed the
weapon; therefore, Capt. Bishop “concluded that the 28 th ”
was the correct date, “and the handwritten date was an error.”
See id. at ¶ 24. Thus, as defendants aver, Capt. Bishop
did not deprive plaintiff procedural due process based on
his decision not to provide plaintiff with the additional log
book dates because those pages were irrelevant, as it was
established that the date contained on the photograph of the
icepick was a mere scrivener's error that had no impact on
the outcome of the hearing. See Torres v. Selsky, No. 9:02-
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CV-0527 (DNH/DEP), 2005 WL 948816, at *7 (N.D.N.Y.
Apr. 25, 2005) (“Evidence considered to be irrelevant or
unnecessary to the issues truly in contention may, in a
hearing officer's discretion, properly be excluded in such a
proceeding.” (citation omitted)).
Similarly, plaintiff's contention that Capt. Bishop violated his
due process by preventing plaintiff from asking Sgt. Baker
whether he had ever “ ‘secured evidence in the drop box
in previous times[,]’ ” or if he “ ‘kn[e]w what [he was]
supposed to do in the evidence drop box sign in sheet when
[he] secure[d] evidence’ ” is meritless. Amen. Compl. at 26 ¶¶
99, 100 (quoting Dkt. No. 25-2 73-74). As the record makes
clear, Capt. Bishop asked Sgt. Baker if he had “secure[d]”
the weapon “on [February 28,] 2016[,] in the evidence drop
box[,]” to which Sgt. Baker replied, “Yes I did.” Id. at ¶
101 (quoting Dkt. No. 25-2 at 75). As discussed above, Sgt.
Baker's testimony at the hearing established that the wrong
date had been recorded on the photograph, but that he entered
the weapon into evidence on February 28, 2016, the last
day he worked before being off on February 29, 2016. Dkt.
No. 178-4 at 5 ¶¶ 23, 24. Thus, the exclusion of plaintiff's
proposed line of questioning was appropriate, as it was neither
relevant nor necessary to plaintiff's defense at the hearing.
See Tafari v. McCarthy, 714 F. Supp. 2d 317, 377 (N.D.N.Y.
2010) (“ ‘A hearing officer does not violate due process by
excluding irrelevant or unnecessary testimony.’ ” (quoting
Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999)).
*30 Further, plaintiff cannot establish a procedural due
process claim based on Capt. Devlin's violation of DOCCS
Directive 4910A by failing to remove the icepick from the
evidence drop box within 72 hours. It is well established that
“[v]iolations of state law do not give rise to claims under 42
U.S.C. § 1983 ...[, and, m]ore specifically, a violation of a
DOCCS directive does not state a claim for a constitutional
violation under § 1983.” Tuitt v. Chase, No. 9:11-CV-0776
(DNH/TWD), 2013 WL 877439, at *10 (N.D.N.Y. Jan. 30,
2013) (internal citation omitted), report and recommendation
adopted, No. 9:11-CV-0776 (DNH/TWD), 2013 WL 877617
(N.D.N.Y. Mar. 8, 2013). In any event, defendants have
established that, although the weapon remained in the
evidence dropbox longer than contemplated under DOCCS
Directive 4910A, the evidence was not ultimately affected in
any way, because “no one accessed the drop box during this
time.” Dkt. No. 178-6 at 3 ¶ 10. Thus, plaintiff's procedural
due process claim in this regard fails. In addition, to the
extent that plaintiff argues that the disciplinary hearing was
the result of a false misbehavior report, see Amen. Compl.
at 24-27, 70, his conclusory assertion does not alter the
foregoing analysis. It is well settled that prison inmates have
no constitutionally guaranteed immunity from being falsely
or wrongfully accused of conduct for which they are subjected
to a deprivation of a protected liberty interest provided that,
as plaintiff was here, the prisoner was afforded sufficient
procedural due process. See Freeman v. Rideout, 808 F.2d
949, 951 (2d Cir. 1986). Similarly, to the extent that plaintiff
relies on the July 2017 administrative reversal of the March
2016 disciplinary decision to establish that Capt. Bishop
violated his procedural due process rights, his claim fails.
See Alexander, 2015 WL 10568892, at *4 (citing Walker,
23 F.3d at 657 (additional citations omitted)). Based on the
foregoing, it is recommended that plaintiff's procedural due
process claims against Capt. Bishop be dismissed.
E. Section 1983 Conspiracy – March
2016 Disciplinary Proceeding
Plaintiff has failed to establish a First Amendment retaliation
claim against any defendant based on the February 2016
misbehavior report and March 2016 disciplinary hearing, and
failed to establish that Capt. Bishop violated his due process
rights at the March 2016 disciplinary hearing; therefore, as
plaintiff has “failed to show an underlying constitutional
violation on which to base his section 1983 conspiracy claim,”
his “conspiracy claim fails as a matter of law.” Taylor,
2012 WL 913678, at *9; Bibeau, 2009 WL 701918, at
*8. In any event, plaintiff's Section 1983 conspiracy claims
relating to the March 2016 disciplinary hearing are wholly
conclusory and belied by defendants’ admissible evidence.
C.O. Breyette's and C.O. Tucker's sworn affidavits both state
that they recovered a weapon from plaintiff's cell on February
28, 2016, which provided the basis for C.O. Breyette's
misbehavior report. See Dkt. No. 178-5 at 2 ¶¶ 8, 10; Dkt.
No. 178-10 at 2 ¶ 7. Both C.O. Breyette and C.O. Tucker
state that he did not communicate about the incident with any
other defendant in this action concerning the discovery of the
weapon, and deny conspiring with anyone against plaintiff.
See Dkt. No. 178-5 at 2 ¶ 11; Dkt. No. 178-10 at 2 ¶ 10.
Further, Capt. Bishop's, Supt. Kirkpatrick's, and Supt. Uhler's
sworn affidavits establish that Supt. Kirkpatrick appointed
Capt. Bishop to preside over the March 2016 disciplinary
hearing without consulting with Capt. Bishop or Supt. Uhler,
and that he appointed Capt. Bishop to preside as the hearing
officer even though the hearing took place at Upstate C.F.
following plaintiff's transfer pursuant to “common procedure
and courtesy” because the underlying incident had occurred
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at Clinton C.F. Dkt. No. 178-13 at 3 ¶ 13; see Dkt. No.
178-11 at 1, 2 ¶¶ 2, 6; Dkt. No. 178-4 at 3 ¶ 16, 5 ¶ 27.
Indeed, in his sworn affidavit, Supt. Kirkpatrick states that
he “did not discuss the appointment with [Capt.] Bishop or
[Supt.] Uhler.” Dkt. No. 178-13 at 2 ¶ 11. Likewise, Capt.
Devlin, Venettozzi, and Rodriguez all deny conspiring against
plaintiff or discussing the February 2016 incident. See Dkt.
No. 178-6 at 3 ¶¶ 12, 16; Dkt. No. 178-9 at 1-2 ¶ 3; Dkt. No.
178-12 at ¶ 4.
Plaintiff's contentions in opposition are devoid of any specific
factual allegations, and plaintiff has not proffered any
evidence to controvert defendants’ sworn statements. See
Dkt. No. 193 at 12, 13, 15, 16. Indeed, plaintiff has not
advanced any specific facts or evidence demonstrating that
defendants engaged in a meeting of the minds, “such as time,
place, or manner in which ... defendants conspired against
plaintiff” to violate his rights with respect to the events
surrounding the March 2016 disciplinary proceeding. Avent,
2020 WL 7705938, at *7. Consequently, it is recommended
that plaintiff's Section 1983 conspiracy claim against C.O.
Breyette, C.O. Tucker, Capt. Bishop, Capt. Devlin, Supt.
Kirkpatrick, Supt. Uhler, Venettozzi, and Rodriguez based on
the March 2016 disciplinary hearing be dismissed.
*31 In light of the foregoing recommendations that
defendants are entitled to summary judgment dismissing
plaintiff's First Amendment retaliation claims and Section
1983 conspiracy claims on the merits, the undersigned
declines to address defendants’ arguments regarding personal
involvement 9 and qualified immunity.
9 The undersigned notes that defendants’ arguments
regarding personal involvement are based
exclusively on their arguments concerning the
merits of plaintiff's First Amendment retaliation
and Section 1983 conspiracy claims, while
conceding Capt. Bishop's personal involvement
with the alleged due process violations at the March
2016 Tier III disciplinary hearing. See Dkt. No.
178-2 at 10-16.
IV. Conclusion
WHEREFORE, based on the findings set forth above, it is
hereby:
RECOMMENDED, that defendants’ Motion for Summary
Judgment (Dkt. No. 178) be GRANTED IN ITS
ENTIRETY, and it is further
RECOMMENDED, that Kowalowski's Motion for
Summary Judgment (Dkt. No. 179) be GRANTED IN ITS
ENTIRETY, and it is further
RECOMMENDED, plaintiff's Amended Complaint (Dkt.
No. 25) be DISMISSED IN ITS ENTIRETY WITH
PREJUDICE; and it is further
ORDERED, that the Clerk of the Court serve a copy of
this Report-Recommendation and Order on all parties in
accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 6(a), 6(e), 72. 10
10 If you are proceeding pro se and are served with
this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you
have seventeen days from the date the Report-
Recommendation & Order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d).
If the last day of that prescribed period falls on
a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2021 WL 3293504
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Rucano v. Annucci
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Filings (1)
Title PDF Court Date Type
1. Docket 9:18-CV-00218
Rucano v. Venettozzi et al
— N.D.N.Y. Feb. 20, 2018 Docket
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Rucano v. Annucci
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History (10)
Direct History (2)
1. Rucano v. Annucci
2021 WL 3293504 , N.D.N.Y. , May 19, 2021
Report and Recommendation Adopted by
2. Rucano v. Venettozzi
2021 WL 3292394 , N.D.N.Y. , Aug. 02, 2021
Related References (8)
3. Rucano v. Annucci
2018 WL 11467222 , N.D.N.Y. , May 24, 2018
4. Rucano v. Venettozzi
2018 WL 11467223 , N.D.N.Y. , Oct. 25, 2018
Reconsideration Denied by
5. Rucano v. Venettozzi
2019 WL 140711 , N.D.N.Y. , Jan. 09, 2019
6. Rucano v. Venettozzi
2019 WL 1306073 , N.D.N.Y. , Mar. 22, 2019
7. Rucano v. Venettozzi
2019 WL 13247926 , N.D.N.Y. , Sep. 27, 2019
8. Rucano v. Venettozzi
2019 WL 6317315 , N.D.N.Y. , Nov. 26, 2019
9. Rucano v. Venettozzi
2020 WL 13599712 , N.D.N.Y. , Apr. 16, 2020
10. Rucano v. Annucci
2020 WL 13599714 , N.D.N.Y. , Oct. 19, 2020
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Rucano v. Annucci
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Smith v. Woods, Not Reported in F.Supp.2d (2006)
2006 WL 1133247
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Smith v. Collins, S.D.N.Y., October 1, 2015
2006 WL 1133247
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jeff SMITH, Plaintiff,
v.
Robert K. WOODS, Deputy Superintendent;
Joseph R. Belarge, Captain; G.J. O'Donnell,
Sergeant; F.S.A. Antonelli; and Wayne
Holt, Correction Officer, Defendants.
No. 9:03-CV-480.
|
April 24, 2006.
Attorneys and Law Firms
Jeff Smith Plaintiff, Pro Se, New York, NY.
Hon. Eliot Spitzer, Attorney General of the State of New
York, Kelly L. Munkwitz, Esq., Asst. Attorney General, of
Counsel, Department of Law, Albany, NY, for Defendants.
DECISION and ORDER
DAVID N. HURD, District Judge.
*1 Plaintiff, Jeff Smith, brought this civil rights action
pursuant to 42 U.S.C. § 1983. By Report-Recommendation
dated March 17, 2006, the Honorable George H.
Lowe, United States Magistrate Judge, recommended that
defendants' motion for summary judgment be granted, and
that plaintiff's motion for partial summary judgment be
denied. (Docket No. 51). The plaintiff has filed objections to
the Report-Recommendation. (Docket No. 53).
Based upon a de novo determination of the portions of
the report and recommendations to which the plaintiff
has objected, the Report-Recommendation is accepted and
adopted in whole. See 28 U .S.C. 636(b)(1). Accordingly, it
is ORDERED that
1. Defendants' motion for summary judgment is GRANTED;
Plaintiff's motion for partial summary judgment is DENIED.
and
The complaint is DISMISSED in its entirety.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
GEORGE H. LOWE, Magistrate Judge.
REPORT-RECOMMENDATION
This matter has been referred to me for Report and
Recommendation by the Honorable David N. Hurd, United
States District Judge, pursuant to 28 U.S.C. § 636(b) and
Local Rule 72.3(c) of the Rules of Practice for this Court.
In this pro se civil rights action brought under 42 U.S.C. §
1983, Jeff Smith (“Plaintiff”) alleges that five employees of
Upstate Correctional Facility-Deputy Superintendent Robert
K. Woods, Captain Joseph R. Belarge, Sergeant G.J.
O'Donnel, Food Service Administrator Richard Antonelli,
and Correction Officer Wayne Holt (“Defendants”)-violated
his rights under the First, Fourth, Eighth, and Fourteenth
Amendments by (1) retaliating against him for having
previously filed a complaint, (2) subjecting him to an
unreasonable search and seizure, (3) subjecting him to a
damaged bunk bed while he was housed in the Upstate
Correctional Facility Special Housing Unit, and (4) taking
away his “good time” credits without affording him due
process. (Dkt. No. 5 [Plf.'s Am. Compl.].) 1
1 Given my duty to liberally construe a pro
se plaintiff's civil rights complaint, I construe
Plaintiff's Amended Complaint as including a claim
that various Defendants violated Plaintiff's rights
under the Fourth Amendment to be free from
unreasonable searches and seizures. See Phillips
v. Girdich, 408 F.3d 124, 130 (2d Cir.2005) (“We
leave it for the district court to determine what
other claims, if any, [the plaintiff] has raised. In
so doing, the court's imagination should be limited
only by [the plaintiff's] factual allegations, not
by the legal claims set out in his pleadings.”)
[citations omitted]. (See also Dkt. No. 5, ¶ 44 [Plf.'s
Am. Compl., alleging that Defendants Woods and
Holt “violat[ed] plaintiff's 4th ... Amendment[ ]
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rights”], ¶ 15 [alleging that Defendant Belarge
“had plaintiff's personal property searched by three
officers, one of whom was Holt”]; Dkt. No. 37, Part
23, Ex. A at 26-28 [Munkowitz Decl., attaching
transcript of deposition of Plaintiff, in which he
explains his claim under the Fourth Amendment
based on the alleged unjustified search and seizure
of his property].)
Currently before the Court is Defendants' motion for
summary judgment (Dkt. No. 37), and Plaintiff's motion
for partial summary judgment (Dkt. No. 38), both brought
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Because both motions were filed on the same day (February
11, 2005), and neither was filed in response to the other,
I construe each motion as a “motion” and neither motion
as a “cross-motion.” Both Plaintiff and Defendants have
responded to each other's motion (Dkt.Nos.42, 45), and
replied to the other's response (Dkt.Nos.47, 48).
Generally, Defendants' motion raises six issues: (1) whether
Plaintiff has failed to establish (or even state) a First
Amendment retaliation claim; (2) whether Plaintiff has failed
to state a Fourth Amendment claim, (3) whether Plaintiff
has failed to establish (or even state) an Eighth Amendment
claim; (4) whether Plaintiff has failed to exhaust his available
administrative remedies regarding his Eighth Amendment
claim; (5) whether Plaintiff has failed to establish (or even
state) a Fourteenth Amendment due process claim; (6)
whether Plaintiff has failed to establish (or properly state) a
conspiracy claim; and (7) whether Defendants are protected
by qualified immunity. (Dkt. No. 37, Part 25 [Defs.' Mem. of
Law].)
*2 Generally, Plaintiff's motion raises three issues: (1)
whether Plaintiff is entitled to judgment as a matter of law on
his First Amendment retaliation claim; (2) whether Plaintiff
is entitled to judgment as a matter of law on his Eighth
Amendment claim; and (3) whether Plaintiff is entitled to
judgment as a matter of law on his Fourteenth Amendment
due process claim. (Dkt. No. 38, Part 3 [Plf.'s Mem. of Law].)
Although I liberally construe Plaintiff's Amended Complaint
as containing a Fourth Amendment claim, I do not liberally
construe his motion as requesting judgment as a matter of law
on his Fourth Amendment claim, especially given the burden
on a movant under the Federal Rules of Civil Procedure. See
Fed.R.Civ.P. 7(b)(1) (requiring that movants “shall set forth
the relief or order sought,” and “shall state with particularity
the grounds [for the relief requested]”).
For the reasons discussed below, I answer each of the six
questions posed in Defendants' motion in the affirmative, and
I answer each of the three questions posed in Plaintiff's motion
in the negative. As a result, I recommend that Defendants'
motion for summary judgment be granted and that Plaintiff's
motion for partial summary judgment be denied.
I. SUMMARY JUDGMENT STANDARD
Under Rule 56(e) of the Federal Rules of Civil
Procedure, summary judgment is warranted if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In determining whether a genuine issue of
material 2 fact exists, the Court must resolve all ambiguities
and draw all reasonable inferences against the moving party.
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997)
(citation omitted); Thompson v. Gjivoje, 896 F.2d 716, 720
(2d Cir.1990) (citation omitted).
2 A fact is “material” only if it would have some
effect on the outcome of the suit. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).
However, when the moving party has met its initial burden of
establishing the absence of any genuine issue of material fact,
the nonmoving party must come forward with “specific facts
showing that there is a genuine issue for trial.” Fed.R.Civ.P.
56(e); see also Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The
nonmoving party must do more than “simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 477
U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “A dispute regarding
a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Ross v. McGinnis, 00-CV-0275, 2004 WL 1125177, at
*8 (W.D.N.Y. March 29, 2004) [internal quotations omitted]
[emphasis added].
Imposed over this general burden-shifting framework is the
generous perspective with which the Court must view a pro se
plaintiff's pleadings. “[I]n actions in which one of the parties
appears pro se, this Court is faced with the ... responsibility
of granting significant liberality in how pro se pleadings are
construed.” Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 467
(S.D.N.Y.1998); see Haines v. Kerner, 404 U.S. 519, 520-21
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(1972) (per curiam) (pro se pleadings held “to less stringent
standards than formal pleadings drafted by lawyers.”); Ortiz
v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). For example,
where a plaintiff is proceeding pro se, and the defendant
has filed a dispositive motion, the Court must construe the
plaintiff's complaint and opposition papers liberally so as to
raise the strongest arguments that they suggest. See Weixel
v. Bd. of Ed. of City of New York, 287 F.3d 138, 146 (2d
Cir.2002) (motion to dismiss in civil rights case); Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (motion for summary
judgment in civil rights case); Thomas v. Irving, 981 F.Supp.
794, 799 (W.D.N.Y.1997) (motion for summary judgment in
civil rights case).
*3 However, although “[t]he work product of pro se litigants
should be generously and liberally construed, ... [a pro se
litigant's] failure to allege either specific facts or particular
laws that have been violated renders [an] attempt to oppose
defendants' motion ineffectual.” Kadosh v. TRW, Inc., 91-
CV-5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994).
In other words, “[p]roceeding pro se does not otherwise
relieve a [party] from the usual requirements to survive
a motion for summary judgment .” Bussa v. Aitalia Line
Aeree Italiane S.p.A., 02-CV-10296, 2004 WL 1637014,
at *4 (S.D.N.Y. July 21, 2004) (citations omitted), accord,
Durran v. Selsky, 251 F.Supp.2d 1208, 1211 (W.D.N.Y.2003)
(citations omitted).
II. STATEMENT OF MATERIAL FACTS
The facts set forth in a defendant's Rule 7.1(a)(3) Statement
of Material Facts will be taken as true to the extent those
facts are supported by the evidence in the record 3 and are not
specifically controverted by the plaintiff. 4
3 See Vermont Teddy Bear Co., Inc. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir.2004)
(citations omitted).
4 See Local Rule 7.1(a)(3) (“Any facts set forth in
the Statement of Material Facts shall be deemed
admitted unless specifically controverted by the
opposing party.”).
To “specifically controvert[ ]” each of the statements of
material fact in a defendant's Rule 7.1(a)(3) Statement of
Material Facts, a plaintiff must file a response to the Statement
of Material Facts that “mirror[s] the movant's Statement
of Material Facts by admitting and/or denying each of the
movant's assertions in matching numbered paragraphs” and
that “set[s] forth a specific citation to the record where the
factual issue arises.” 5
5 Local Rule 7.1(a)(3); see, e.g., Jones v.
Smithkline Beecham Corp., 309 F.Supp.2d 343,
346 (N.D.N.Y.2004) (McAvoy, J.) (“[W]here
Plaintiff has failed to provide specific references
to the record in support of her denials or has
otherwise failed to completely deny Defendant's
assertions of fact, those assertions will be taken
as true.”); Lee v. Alfonso, 97-CV-1741, 2004 U.S.
Dist. LEXIS 20746, at *15 (N.D.N.Y. Feb. 10,
2004) (Scullin, C.J.) (“Plaintiff does not offer any
facts to support his claims that would raise an
issue of fact. Nor has he overcome his failure to
respond to Defendants' Rule 7.1(a)(3) Statement.
Therefore, Defendants' version of the facts remains
uncontroverted.”); Margan v. Niles, 250 F.Supp.2d
63, 67 (N.D.N.Y.2003) (Hurd, J.) (“Plaintiff's
Rule 7.1(a)(3) statement, which contains numerous
denials, does not contain a single citation to the
record. Because plaintiff's response Rule 7.1(a)
(3) statement does not comply with the local
rules, it has not been considered.”); Mehlenbacher
v. Slafrad, 99-CV-2127, 2003 U.S. Dist. LEXIS
9248, at *4 (N.D.N.Y. June 4, 2003) (Sharpe, M.J.)
(“Since [the plaintiff] has failed to respond to the
defendant's statements of material fact, the facts as
set forth in the defendants' Rule 7.1 Statement ... are
accepted as true.”); Adams v. N.Y. State Thruway
Auth., 97-CV-1909, 2001 U.S. Dist. LEXIS 3206,
at *2, n. 1 (N.D.N.Y. March 22, 2001) (Mordue,
J.) (“[T]o the extent plaintiff's responses violate
Local Rule 7. 1, and are not properly admitted or
denied, the Court will deem defendant's statement
of fact admitted by plaintiff.”); see also Holtz v.
Rockefeller, 258 F.3d 62, 74 (2d Cir.2001) (“[A]
Local Rule 56.1 statement is not itself a vehicle
for making factual assertions that are otherwise
unsupported in the record.”).
Portions of the record sufficient to create a “factual issue”
include affidavits or verified complaints (which are treated as
affidavits for purposes of summary judgment). 6 However, to
be sufficient to create a “factual issue,” such an affidavit or
verified complaint must, among other things, be based “on
personal knowledge.” 7 An affidavit or verified complaint is
not based on personal knowledge if, for example, it is based
on mere “information and belief” or hearsay. 8
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6 See Patterson v. County of Oneida, 375 F.2d
206, 219 (2d. Cir.2004) (“[A] verified pleading ...
has the effect of an affidavit and may be relied
upon to oppose summary judgment.”); Fitzgerald
v. Henderson, 251 F.3d 345, 361 (2d Cir.2001)
(holding that plaintiff “was entitled to rely on
[his verified amended complaint] in opposing
summary judgment”), cert. denied, 536 U.S. 922
(2002); Colon v. Coughlin, 58 F.3d 865, 872
(2d Cir.1993) (“A verified complaint is to be
treated as an affidavit for summary judgment
purposes.”) [citations omitted]; Fed.R.Civ.P. 56(c)
(“The judgment sought shall be rendered forthwith
if the ... affidavits ... show that there is no genuine
issue as to any material fact....”).
7 Fed.R.Civ.P. 56(e) (“Supporting and opposing
affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the
affiant is competent to the matters stated therein.”);
see also U.S. v. Private Sanitation Indus. Ass'n
of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d
Cir.1995) [citations omitted], cert. denied sub nom,
Ferrante v. U.S., 516 U.S. 806 (1995).
8 See Patterson, 375 F.3d at 219 (“[Rule 56(e)'s]
requirement that affidavits be made on personal
knowledge is not satisfied by assertions made
‘on information and belief.’... [Furthermore, the
Rule's] requirement that the affiant have personal
knowledge and be competent to testify to the
matters asserted in the affidavits also means that
the affidavit's hearsay assertion that would not be
admissible at trial if testified to by the affiant is
insufficient to create a genuine issue for trial.”);
Sellers v. M .C. Floor Crafters, Inc., 842 F.2d 639,
643 (2d Cir.1988) (“[Defendant's] affidavit states
that it is based on personal knowledge or upon
information and belief.... Because there is no way to
ascertain which portions of [Defendant's] affidavit
were based on personal knowledge, as opposed to
information and belief, the affidavit is insufficient
under Rule 56 to support the motion for summary
judgment.”); Applegate v. Top Assoc., Inc., 425
F.2d 92, 97 (2d Cir.1970) (rejecting affidavit
made on “suspicion ... rumor and hearsay”);
Spence v. Maryland Cas. Co., 803 F.Supp. 649,
664 (W.D.N.Y.1992) (rejecting affidavit made on
“secondhand information and hearsay”), aff'd, 995
F.2d 1147 (2d Cir.1993).
Similarly, such an affidavit or verified complaint must not
be conclusory. 9 Of course, an affidavit may be conclusory
because its assertions are too general. 10 However, even
where an affidavit's assertions are specific (e.g., with respect
to time, place, persons, events, conversation, etc.), that
affidavit may still be deemed conclusory if it is (1) “largely
unsubstantiated by any other direct evidence” and (2) “so
replete with inconsistencies and improbabilities that no
reasonable juror would undertake the suspension of disbelief
necessary to credit the allegations made in the complaint.” 11
Indeed, it has long been the rule in the Second Circuit
that “issues of credibility sufficient to defeat a motion for
summary judgment are not created if the contradicting or
impeaching evidence is too incredible to be believed by
reasonable minds.” Price v. Worldvision Enterprises, Inc., 455
F.Supp. 252, 266, n. 25 (S.D.N.Y.1978), aff'd without opinion,
603 F.2d 214 (2d Cir.1979).
9 See Fed.R.Civ.P. 56(e) (requiring that non-movant
“set forth specific facts showing that there is a
genuine issue for trial”); Patterson, 375 F.3d at
219 (2d. Cir.2004) (“Nor is a genuine issue created
merely by the presentation of assertions [in an
affidavit] that are conclusory.”) [citations omitted];
Applegate, 425 F.2d at 97 (stating that the purpose
of Rule 56[e] is to “prevent the exchange of
affidavits on a motion for summary judgment from
degenerating into mere elaboration of conclusory
pleadings”).
10 See, e.g., Bickerstaff v. Vassar Oil, 196 F.3d
435, 452 (2d Cir.1998) (McAvoy, C.J., sitting
by designation) (“Statements [for example, those
made in affidavits, deposition testimony or trial
testimony] that are devoid of any specifics,
but replete with conclusions, are insufficient to
defeat a properly supported motion for summary
judgment.”) [citations omitted]; West-Fair Elec.
Contractors v. Aetna Cas. & Sur., 78 F.3d 61,
63 (2d Cir.1996) (rejecting affidavit's conclusory
statements that, in essence, asserted merely that
there was a dispute between the parties over the
amount owed to the plaintiff under a contract);
Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir.1985)
(plaintiff's allegation that she “heard disparaging
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remarks about Jews, but, of course, don't ask me
to pinpoint people, times or places.... It's all around
us” was conclusory and thus insufficient to satisfy
the requirements of Rule 56[e] ), cert. denied,
474 U.S. 829 (1985); Applegate, 425 F.2d at 97
(“[Plaintiff] has provided the court [through his
affidavit] with the characters and plot line for a
novel of intrigue rather than the concrete particulars
which would entitle him to a trial.”).
11 See, e.g., Jeffreys v. City of New York, 426 F.3d
549, 554-555 (2d Cir.2005) (affirming grant of
summary judgment to defendants in part because
plaintiff's testimony about an alleged assault by
police officers was “largely unsubstantiated by
any other direct evidence” and was “so replete
with inconsistencies and improbabilities that no
reasonable juror would undertake the suspension
of disbelief necessary to credit the allegations
made in the complaint”) [citations and internal
quotations omitted]; Argus, Inc. v. Eastman Kodak
Co., 801 F.2d 38, 45 (2d Cir.1986) (affirming
grant of summary judgment to defendants in part
because plaintiffs' deposition testimony regarding
an alleged defect in a camera product line was,
although specific, “unsupported by documentary
or other concrete evidence” and thus “simply
not enough to create a genuine issue of fact in
light of the evidence to the contrary”); Allah v.
Greiner, 03-CV-3789, 2006 WL 357824, at *3-4
& n. 7, 14, 16, 21 (S.D.N.Y. Feb. 15, 2006)
(prisoner's verified complaint, which recounted
specific statements by defendants that they were
violating his rights, was conclusory and discredited
by the evidence, and therefore insufficient to create
issue of fact with regard to all but one of prisoner's
claims, although verified complaint was sufficient
to create issue of fact with regard to prisoner's
claim of retaliation against one defendant because
retaliatory act occurred on same day as plaintiff's
grievance against that defendant, whose testimony
was internally inconsistent and in conflict with
other evidence); Olle v. Columbia Univ., 332
F.Supp.2d 599, 612 (S.D.N.Y.2004) (plaintiff's
deposition testimony was insufficient evidence to
oppose defendants' motion for summary judgment
where that testimony recounted specific allegedly
sexist remarks that “were either unsupported by
admissible evidence or benign”), aff'd, 136 Fed.
Appx. 383 (2d Cir.2005) (unreported decision).
*4 Here, Defendants have a filed Rule 7.1 Statement
of Material Facts, and supporting affidavits and exhibits.
(Dkt. No. 37, Parts 2-25.) Plaintiff has filed a response to
Defendants' Rule 7.1 Statement. (Dkt. No. 42, Part 1.) In
addition, Plaintiff has filed (1) declarations and exhibits in
opposition to the affidavits of Defendants Woods, Belarge,
Holt, Antonelli, and Holden (Dkt. No. 42, Parts 1, 3), and
(2) a verified Amended Complaint (Dkt. No. 5). Finally,
because Plaintiff is proceeding pro se and this is a civil
rights action, I will consider, in evaluating Plaintiff's response
to Defendants' motion for summary judgment, Plaintiff's
declaration and exhibits in support of his motion for partial
summary judgment. (Dkt. No. 38, Parts 1, 4.)
I address Plaintiff's responsive documents in more detail
below. However, a few general observations are appropriate
here. Plaintiff's Rule 7.1 Response contains hardly any
citations to the record, much less any citations to admissible
evidence; rather, to the extent that Plaintiff's Rule 7.1
Response contains any citations at all, those citations are often
to other portions of Plaintiff's Response or to his Amended
Complaint (which are, themselves, conclusory), or to exhibits
that do not support his denial of the fact asserted. Moreover,
his Declarations and verified Amended Complaint are often
argumentative in nature (in violation of Local Rule 7.1[a]
[2] ) and not based on personal knowledge (but only hearsay
or pure speculation). Finally, his Declarations and verified
Amended Complaint are often conclusory and replete with
inconsistencies and improbabilities.
For example, he asserts that “[a]t no time did [he] possess[ ]
[Inmate Alcivar's] legal materials other than [the times when
he and Inmates Lipman and Robles approached Defendant
Holt with such materials].” 12 However, his own letters and
deposition testimony contain repeated representations that he
was, at other times, in possession of such materials. 13
12 (Dkt. No. 42, Part 1, ¶ 7 [Plf.'s Response to Woods
Aff.].)
13 (See, e.g., Dkt. No. 37, Part 22, Ex. A at
31 [Munkowitz Decl., attaching transcript of
Plaintiff's deposition, in which he testifies that,
when Defendant Holt failed to take “control” of
Inmate Alcivar's legal documents, Defendant Holt
left Plaintiff “stuck with them as well as the other
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two inmates”], 31-32 [admitting that he did not
return the documents to the law clerk's work station
in the law library out of a fear that the document
may fall into another inmate's hands], 32 [admitting
that he took the documents to “honor” Inmate
Alcivar's “wishes”], 33 [admitting that he took the
documents after Inmate Alcivar's death based on
his belief that “they were not supposed to be in
the law library after the inmate was deceased”];
Dkt. No. 37, Part 18, Ex. B at 6-9 [Antonelli
Aff., attaching letter dated 7/4/02 from Plaintiff,
in which he states, “There is [sic] two inmates
that Peter trusted with his papers and other legal
documents, that is one inmate that housed [sic] in
the same dorm as him and myself.... Peter told me
that you have copies of all his papers, those of
which are the same as the papers I have here”];
Dkt. No. 37, Part 18, Ex. B at 10-12, 14 [Antonelli
Aff., attaching 7/16/02 letter from Plaintiff, in
which he states, “I am going to hold a copy of
the complaint” in Inmate Alcivar's federal civil
rights action]; Dkt. No. 37, Part 7 [Ex. C to Woods
Aff., attaching Plaintiff's 8/5/02 letter, in which he
states, “in the future if anything should come of a
matter of said documents being in my possession ...
you and the administration cannot take any action
against the inmate's family nor myself”] [emphasis
added].)
Similarly, he asserts that the documents allegedly discovered
by Defendant O'Donnell in Plaintiff's “cube” on August 31,
2002, were in fact “the exact same materials intercepted by
Woods through the U.S. mail.” 14 However, those documents
contained copies of two letters-dated July 4, 2002, and July
16, 2002-from Plaintiff to Inmate Alcivar's two daughters. 15
Plaintiff offers no explanation as to why Inmate Alcivar's
daughters would be returning copies of those letters to
Plaintiff between August 19, 2006, and August 31, 2002-
the time period during which Defendant Woods allegedly
intercepted Plaintiff's mail. 16
14 (Dkt. No. 42, Part 1, ¶ 5.B. [Plf.'s Response to
Antonelli Aff.].)
15 (Dkt. No. 37, Part 18 at 6-8, 10-12 [Ex. B
to Antonelli Aff., attaching contraband allegedly
found in Plaintiff's “cube”].)
16 (Dkt. No. 5, ¶ 12 [Am. Compl.].)
Generally, I find such assertions by Plaintiff to be too
incredible to be believed by reasonable minds.
Accordingly, the following material facts, even when viewed
most favorably to Plaintiff, are supported by evidence in the
record, and are not specifically controverted by Plaintiff:
Background
1. From July of 2002 until November of 2002 (the time period
relevant to the allegations contained in Plaintiff's Amended
Complaint), Plaintiff was an inmate in the care and custody
of the New York State Department of Correctional Services
(“DOCS”), incarcerated at the Greene Correctional Facility
(“Greene C.F.”). 17
17 (Dkt. No. 37, Part 2, ¶ 2 [Defs.' Rule 7.1 Statement];
Dkt. No. 42, Part 1, ¶ 2 [Plf.'s Rule 7.1 Response];
Dkt. No. 5, ¶ 4 [Am. Compl].)
*5 At all times relevant to this action, Defendant Robert
K. Woods was the Deputy Superintendent for Security at
Greene C.F.; Defendant Joseph R. Belarge was a Captain
at Greene C.F.; Defendant G.J. O'Donnel was a Sergeant
at Greene C.F.; Defendant Richard Antonelli was a Food
Services Administrator at Greene C.F.; and Defendant Wayne
Holt was a Corrections Officer at Greene C.F. 18
18 (Dkt. No. 37, Part 2, ¶¶ 4-8 [Defs.' Rule 7.1
Statement]; Dkt. No. 42, Part 1, ¶¶ 4-8 [Plf.'s Rule
7.1 Response]; Dkt. No. 5, ¶ ¶ 3, 3(a), 3(b), 3(c)
[Am. Compl.].)
Plaintiff's Legal Assistance to Inmate Peter Alcivar
and Communications with Inmate Alcivar's Daughters
3. At some point in 2001, Inmate Peter Alcivar filed a civil
rights action against DOCS and employees of Greene C.F.
and Woodbourne C.F. in the United States District Court for
the Northern District of New York (civil action number 9:01-
CV-1198). 19
19 (Dkt. No. 42, Part 1, ¶ 12 [Plf.'s Rule 7.1 Response];
Dkt. No. 5, “Facts of the Incident,” ¶¶ 1-3 [Am.
Compl.]; Dkt. No. 37, Part 18, Ex. B at 18-37
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[Antonelli Aff., attaching pleading and motion
from lawsuit].)
4. On or about May 7, 2002, Plaintiff provided legal assistance
to Inmate Alcivar by answering a question regarding an
affidavit. 20 At the time, Plaintiff was not an inmate law
clerk. 21
20 (Dkt. No. 37, Part 2, ¶ 12 [Defs.' Rule 7.1
Statement]; Dkt. No. 42, Part 1, ¶ 12 [Plf.'s Rule
7.1 Response, admitting that, on one occasion,
Plaintiff answered a question posed by Inmate
Alcivar regarding an affidavit, which question and
answer were communicated with the help of Inmate
Law Clerk George Robles]; Dkt. No. 5, “Facts of
the Incident,” ¶ 2 [Am. Compl.]; Dkt. No. 37, Part
18 [Ex. B. to Antonelli Aff.].)
21 (Dkt. No. 37, Part 2, ¶ 13 [Defs.' Rule 7.1
Statement]; Dkt. No. 42, Part 1, ¶ 13 [Plf.'s Rule
7.1 Response].)
5. On or about May 10, 2002, Inmate Alcivar was admitted to
Albany Medical Center to receive treatment for cancer. 22
22 (Dkt. No. 1, “Facts of the Incident,” ¶ 1 [Am.
Compl.]; Dkt. No. 42, Part 1, ¶ 6 [Plf.'s Response
to Antonelli Aff., asserting that Inmate Alcivar
was “admitted to Albany Medical Center Hospital
three days after Robles asked plaintiff the question
[about] an affidavit and its contents”].)
6. On or about July 4, 2002, Plaintiff wrote and sent a letter
to Inmate Alcivar's two daughters about Inmate Alcivar's
pending federal civil rights action. 23 In pertinent part, the
letter stated,
23 (Dkt. No. 37, Part 18, Ex. B at 6-9 [Antonelli
Aff., attaching letter dated 7/4/02 from Plaintiff to
Raida and Raisa Alcivar, and letter dated 6/24/02];
Dkt. No. 37, Part 23, Ex. A at 79-80 [Munkwitz
Dec., attaching transcript of Plaintiff's deposition,
in which Plaintiff admits having written and sent
the letter dated 7/4/02].)
I am writing to inform you of my assistance to Peter [Alcivar]
in the above referenced matter [case number 9:01-CV-1198]
where he has a Section 1983 of the U.S.C.A. Civil Rights
complaint against the Department of Correctional Services
now pending in the United States District Court for the
Northern District of New York; that is if he (Peter) hasn't
already told both of you that I am helping him with the filing
of his motions, etc....
Getting right to the point for the purpose of writing you, and
letting you know what is going on with Peter's case. There is
[sic] two inmates that Peter trusted with his papers and other
legal documents, that is one inmate that housed [sic] in the
same dorm as him and myself....
I have already wrote [sic] to the court on June 24, 2002,
informing said court as to Peter's current situation.... See copy
of the letter addressed to the court ... enclosed with this letter
I am writing you....
Peter told me that you have copies of all his papers, those of
which are the same as the papers I have here....
[I]f you wish ... you all could come to the facility to see me,
I would then go over the case with all of you, tell all of you
what I know from Peter, the research that I have done for him
and the list of cases of authority that I have and would cite in
his motions and use at trial; I also could give you all of his
legal documents right there....
Both of you should ... let Peter know that he should not worry
about the case, it is not going to be dismissed ... because I
already wrote to the court for him. 24
24 (Dkt. No. 37, Part 18, Ex. B at 6-9 [Antonelli Aff.,
attaching letter dated 7/4/02 from Plaintiff to Raida
and Raisa Alcivar, and letter dated 6/24/02].)
7. On or about July 6, 2002, Inmate Alcivar died at Albany
Medical Center. 25
25 (Dkt. No. 37, Part 2, ¶ 11 [Defs.' Rule 7.1
Statement]; Dkt. No. 42, Part 1, ¶ 11 [Plf.'s Rule 7.1
Response]; Dkt. No. 5, “Facts of the Incident,” ¶ 3
[Am. Compl.].)
*6 8. On or about July 16, 2002, Plaintiff wrote and sent a
second letter to Alcivar's two daughters. 26 In pertinent part,
the letter states: “The box containing the legal documents
should be following this letter, I am going to hold a copy of
the complaint so if you should find a lawyer he or she could
visit me at the facility and go over the facts the claim is based
on.” 27 In addition, the last page of the letter states:
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26 (Dkt. No. 37, Part 2, ¶ 18 [Defs.' Rule 7.1
Statement, asserting that Plaintiff wrote and sent
the letter and memorandum]; Dkt. No. 42, Part
1, ¶ 18 [Plf.'s Rule 7.1 Response, not specifically
denying that Plaintiff wrote and sent the letter
and memorandum]; Dkt. No. 37, Part 16, ¶ 9
[Antonelli Aff.]; Dkt. No. 37, Part 18, Ex. B at
10-12, 14 [Antonelli Aff., attaching 7/16/02 letter,
the last page of which refers to an attached “To/
From” memorandum]; Dkt. No. 37, Part 23, Ex. A
at 81-82 [Munkwitz Decl., attaching transcript of
Plaintiff's deposition, in which he admitted writing
and sending the letter and memorandum].)
27 (Dkt. No. 37, Part 18, Ex. B at 10 [Antonelli Aff.,
attaching 7/16/02 letter].)
NOTE: Read the “TO/From” memo form note that I made up,
get it notarize [sic] and sign it in front of the notary public.
Make a copy for your files and send me the original.
It is an idea to have that note in my files so non [sic] of the
officers and staff members would ask what I am doing with
Mr. Alcivar [sic] legal documents if he is no longer here. By
doing the above your [sic] are giving me consent to have said
documents in my possession. 28
28 (Dkt. No. 37, Part 18, Ex. B at 10-12, 14 [Antonelli
Aff., attaching 7/16/02 letter, the last page of which
refers to an attached “To/From” memorandum].)
9. On or about August 8, 2002, Plaintiff wrote and sent a
third letter to Alcivar's two daughters. 29 In pertinent part,
the letter states: “Please send me that ‘To/From’ note if you
already have it notarized, I told you I need it for the copy of
the complaint I told you that I would hold....”
29 (Dkt. No. 37, Part 16, ¶ 9 [Antonelli Aff.]; Dkt.
No. 37, Part 18, Ex. B at 13 [Antonelli Aff.,
attaching 8/8/02 letter]; Dkt. No. 37, Part 23, Ex. A
at 81-82 [Munkwitz Decl., attaching transcript of
Plaintiff's deposition, in which he admitted writing
and sending the letter].)
Plaintiff's Communications with Defendant Woods
and the Search of Plaintiff's Prison Cell (or “Cube”)
10. On or about July 16, 2002, Plaintiff wrote and sent a note
to Defendant Woods. 30 The note stated: “Please be advised
that I need to talk to you in reference to the above subject
inmate [i.e., Inmate Alcivar] which is a matter of importance.
This must be in person at your earliest convenience. Thank
you for your professional attention to this request.” 31
30 (Dkt. No. 37, Part 3, ¶ 3 [Woods Aff.]; Dkt. No.
37, Part 4, Ex A [Woods Aff.]; Dkt. No. 37, Part
2, ¶ 20 [Defs.' Rule 7.1 Statement, asserting fact];
Dkt. No. 42, Part 1, ¶ 20 [Plf.'s Rule 7.1 Response,
admitting fact].)
31 (Dkt. No. 37, Part 4, Ex A [Woods Aff.].)
11. On or about July 21, 2002, Plaintiff wrote and sent a
second note to Defendant Woods. 32 The note stated: “Please
note that on the above subject date [i.e., July 16, 2002] I wrote
to you requesting to see you. I must speak to you before July
23, 2002. This matter is very important. Thank you for your
attention.” 33
32 (Dkt. No. 37, Part 3, ¶ 3 [Woods Aff.]; Dkt. No.
37, Part 5 [Ex. B to Woods Aff.]; Dkt. No. 37, Part
2, ¶ 20 [Defs.' Rule 7.1 Statement, asserting fact];
Dkt. No. 42, Part 1, ¶ 20 [Plf.'s Rule 7.1 Response,
admitting fact].)
33 (Dkt. No. 37, Part 5 [Ex. B to Woods Aff.].)
12. Defendant Woods did not respond to Plaintiff's notes for
two reasons: (1) Defendant Woods did not receive either of
the two notes until after the date referenced by Plaintiff (i.e.,
July 23, 2002) had passed; and (2) Defendant Woods believed
that Plaintiff's notes were “cryptic.” 34
34 (Dkt. No. 37, Part 3, ¶¶ 4-5 [Woods Aff.]; Dkt.
No. 37, Part 2, ¶ 21 [Defs.' Rule 7.1 Statement,
asserting fact]; Dkt. No. 42, Part 1, ¶ 21 [Plf.'s
Rule 7.1 Response, not specifically controverting
either that Defendant Woods did not receive the
notes until after July 23, 2003, or that Defendant
Woods believed the notes to be “crypic”]; Dkt. No.
37, Part 8, Ex. D [Woods Aff., attaching Defendant
Woods' 8/6/02 memorandum to Plaintiff stating
that Plaintiff's two notes were “brief and very
vague” and lacked “specifics”].)
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13. On or about August 5, 2002, Plaintiff wrote and sent
a third note to Deputy Superintendent Woods. 35 The note
stated, in pertinent part:
35 (Dkt. No. 37, Part 3, ¶ 6 [Woods Aff.]; Dkt. No. 37,
Part 7, Ex. C [Woods Aff., attaching note]; Dkt. No.
37, Part 2, ¶ 22 [Defs.' Rule 7.1 Statement, asserting
that Plaintiff wrote and sent note]; Dkt. No. 42, Part
1, ¶ 22 [Plf.'s Rule 7.1 Response, not specifically
controverting that Plaintiff wrote and sent note].)
Please take notice that since you have neglected to answer
the above two (2) requests [i.e., dated July 16, 2002, and
July 21, 2002] to meet with me about a very serious matter
concerning a <DEAD> man's legal documents, in the future
if anything should come of a matter of said documents being
in my possession or the inmate's family should have any
questions of same and I answer those questions according to
law, you and the administration cannot take any action against
the inmate's family nor myself. 36
36 (Dkt. No. 37, Part 7 [Ex. C to Woods Aff.].)
*7 14. On or about August 6, 2002, Defendant Woods sent
a memorandum to Plaintiff. 37 That memorandum stated, in
pertinent part:
37 (Dkt. No. 37, Part 3, ¶ 6 [Woods Aff., asserting
that he sent this memorandum]; Dkt. No. 42,
Part 1, ¶ 6 [Plf.'s Response to Woods Aff.,
admitting that Defendant Woods sent Plaintiff this
memorandum]; Dkt. No. 37, Part 8, Ex. D [Woods
Aff., attaching the memorandum].)
Your August 5th letter ... makes reference to legal documents
belonging to deceased Inmate Alcivar.... I have directed Law
Library Officer Holt to speak to you and recover from you any
legal documents of deceased Inmate Alcivar.... In fact, you
should have turned over any such documents to Law Library
Officer Holt immediately. 38
38 (Dkt. No. 37, Part 7, Ex. D [Woods Aff., attaching
the 8/6/02 memorandum].)
15. On August 7, 2002, Plaintiff received Defendant Woods'
memorandum. 39
39 (Dkt. No. 5, “Facts of the Incident,” ¶ 11 [Plf.'s Am.
Compl.].)
16. Meanwhile, on or about August 5, 2002, Defendant
Holt asked Plaintiff for Inmate Alcivar's legal documents. 40
Plaintiff denied having such documents. 41
40 (Dkt. No. 37, Part 2, ¶ 24 [Defs.' Rule 7.1
Statement, asserting fact]; Dkt. No. 42, Part 1,
¶ 24 [Plf.'s Rule 7.1 Response, not specifically
controverting fact]; Dkt. No. 37, Part 29, ¶ 7 [Holt
Aff.]; Dkt. No. 5, “Facts of the Incident,” ¶ 10
[Plf.'s Am. Compl.].)
41 (Dkt. No. 37, Part 2, ¶ 24 [Defs.' Rule 7.1
Statement, asserting fact]; Dkt. No. 42, Part 1,
¶ 24 [Plf.'s Rule 7.1 Response, not specifically
controverting that Plaintiff denied to Defendant
Holt having Inmate Alcivar's legal documents,
only citing to Paragraph 12 of Plaintiff's Rule 7.1
Response, which is not material to the asserted
fact]; Dkt. No. 37, Part 29, ¶ 7 [Holt Aff.].)
17. As a result, at some point between August 5, 2002,
and August 31, 2002, Defendant Woods directed Defendant
Belarge to have Plaintiff's cell (or “cube”) searched and to
interview Plaintiff about his statements made in his August 5,
2002, note. 42
42 (Dkt. No. 37, Part 3, ¶¶ 8, 9 [Woods Aff.]; Dkt.
No. 37, Part 8, ¶ 3 [Belarge Aff.]; Dkt. No. 37,
Part 2, ¶ 25 [Defs.' Rule 7.1 Statement, asserting
that Defendant Woods directed Defendant Belarge
to have Plaintiff's cell searched]; Dkt. No. 42, Part
1, ¶ 24 [Plf.'s Rule 7.1 Response, admitting that
Defendant Woods directed Defendant Belarge to
have Plaintiff's “cube” searched].)
18. At some point on August 31, 2002 (apparently
between 8:30 a.m. and 11:00 a.m.), Defendant Belarge
had Plaintiff's cell (or “cube”) searched by Defendant
O'Donnell (and apparently Defendant Holt and two other
corrections officers). 43 At some point (apparently during this
search), Defendant O'Donnell discovered Inmate Alcivar's
legal documents (as well as various correspondence between
Plaintiff and Inmate Alcivar's two daughters). 44
43 (Dkt. No. 37, Part 8, ¶ 4 [Belarge Aff.]; Dkt. No.
37, Part 2, ¶¶ 25-26 [Defs.' Rule 7.1 Statement];
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Dkt. No. 42, Part 1, ¶¶ 25-26 [Plf.'s Rule 7.1
Response]; Dkt. No. 37, Part 17, Ex. A [Antonelli
Aff., attaching misbehavior report which suggests
that Defendants Belarge and O'Donnell had in their
possession Inmate Alcivar's legal documents as
well as various correspondence between Plaintiff
and Inmate Alcivar's two daughters, before those
Defendants interviewed Plaintiff at 11:00 a.m.
on August 31, 2002]; Dkt. No. 5, “Facts of the
Incident,” ¶¶ 13-14 [Plf.'s Am. Compl., stating
that Defendant Belarge had in his possession a
letter that Plaintiff had written to Raisa Alcivar by
the time he interviewed Plaintiff at 10:57 a.m. on
August 31, 2002].)
44 (Dkt. No. 37, Part 2, ¶ 26 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part
1, ¶ 26 [Plf.'s Rule 7.1 Response, not citing any
admissible evidence in support of his denial of this
fact]; Dkt. No. 37, Part 8, ¶ 4 [Belarge Aff.]; Dkt.
No. 37, Part 3, ¶ 10 [Woods Aff.]; Dkt. No. 37, Part
16, ¶ 5 [Antonelli Aff.]; Dkt. No. 37, Part 18, Ex.
B [Antonelli Aff., attaching documents discovered
in Plaintiff's cell, and “Chain of Custody” Record
indicating that Defendant O'Donnell was the one
who found the documents]; Dkt. No. 38, Part 4
at 90 [exhibit to Plaintiff's motion for summary
judgment, attaching Contraband Receipt issued by
Defendant O'Donnell]; Dkt. No. 37, Part 22, Ex. A
at 31-33 [Munkowitz Decl., attaching transcript of
Plaintiff's deposition, in which he admits numerous
times that, after Defendant Holt failed to take
“control” of Inmate Alcivar's legal documents,
Plaintiff, along with two other inmates, retained
possession of those documents, out of a fear
that those documents would be stolen by another
inmate, and out of a sense of duty to Inmate
Alcivar]; Dkt. No. 37, Part 18, Ex. B at 10-12,
14 [Antonelli Aff., attaching 7/16/02 letter from
Plaintiff, in which he states, “I am going to hold a
copy of the complaint” in Inmate Alcivar's federal
civil rights action]; Dkt. No. 37, Part 7 [Ex. C to
Woods Aff., attaching Plaintiff's 8/5/02 letter, in
which he states, “in the future if anything should
come of a matter of said documents being in my
possession ... you and the administration cannot
take any action against the inmate's family nor
myself”]; see also Dkt. No. 37, Part 19, ¶ 3 [Holden
Aff., testifying that at some point in the summer
of 2002 Plaintiff told Holden that he was helping
an inmate who had been taken to the hospital due
to an illness]; Dkt. No. 45, Part 6, ¶¶ 4-5 [Belarge
Reply Aff., swearing that evidence in question did
not come from any interception of Plaintiff's mail,
but from Plaintiff's personal belongings].)
19. At approximately 11:00 a.m. on August 31, 2002,
Defendants Belarge and O'Donnell interviewed Plaintiff
about his statements in his August 5, 2002, note to Defendant
Woods. 45 At approximately 2:50 p.m. on August 31,
2002, Defendant O'Donnell stored Inmate Alcivar's legal
documents (as well as various correspondence between
Plaintiff and Inmate Alcivar's two daughters) in an evidence
locker at Greene C.F. 46
45 (Dkt. No. 37, Part 2, ¶ 28 [Defs.' Rule 7.1
Statement, asserting that interview took place];
Dkt. No. 42, Part 1, ¶ 28 [Plf.'s Rule 7.1 Response,
admitting that interview took place despite his
blanket statement “Deny”]; Dkt. No. 37, Part 8, ¶ 5
[Belarge Aff.]; Dkt. No. 5, “Facts of the Incident,”
¶¶ 13-15 [Plf.'s Am. Compl., stating that interview
took place at 10:57 a.m. on 8/31/02]; Dkt. No. 37,
Part 17, Ex. A [Antonelli Aff., attaching 8/31/02
misbehavior report, stating that the interview took
place at 11:00 a.m. on 8/31/02].)
46 (Dkt. No. 37, Part 18, Ex. B [Antonelli Aff.,
attaching documents discovered in Plaintiff's cell,
and “Chain of Custody” Record indicating that
Defendant O'Donnell stored the documents in an
evidence locker at 2:50 p.m. on 8/31/02]; Dkt. No.
37, Part 17, Ex. A at 2 [Antonelli Aff., attaching
8/31/02 misbehavior report, stating that Defendant
O'Donnell stored the documents in an evidence
locker on 8/31/02].)
Plaintiff's Misbehavior Report,
Disciplinary Hearing, and Appeal
20. Relying on the documents discovered and the subsequent
interview conducted, Defendants Belarge and O'Donnell
issued Plaintiff a misbehavior report on August 31, 2002. 47
The misbehavior report charged Plaintiff with three offenses:
(1) providing legal assistance to Inmate Alcivar without
prior authorization in violation of Inmate Rule 180.17; (2)
exchanging legal materials with Inmate Alcivar without
authorization in violation of Inmate Rule 113.15; and (3)
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soliciting materials from Inmate Alcivar's family members
without authorization in violation of Inmate Rule 103.20. 48
47 (Dkt. No. 37, Part 8, ¶ 6 [Belarge Aff.]; Dkt. No. 37,
Part 17, Ex. A [Antonelli Aff., attaching 8/31/02
misbehavior report].)
48 (Dkt. No. 37, Part 17, Ex. A [Antonelli Aff.,
attaching 8/31/02 misbehavior report]; Dkt. No. 37,
Part 2, ¶ 29 [Defs.' Rule 7.1 Statement, asserting
this fact]; Dkt. No. 42, Part 1, ¶ 29 [Plf.'s Response,
admitting receipt of the misbehavior report, and
not specifically denying that he was charged with
the three offenses stated in Defendants' assertion of
fact].)
21. During the time period at issue (i.e., May through
August of 2002), Rule 180.17 of DOCS' Standards of
Inmate Behavior prohibited inmates from providing legal
assistance to other inmates without prior approval from the
Superintendent or his designee; 49 Rule 113.15 of DOCS'
Standards of Inmate Behavior prohibited inmates from
exchanging personal property (such as legal materials) with
other inmates without authorization; 50 and Rule 103.20 of
DOCS' Standards of Inmate Behavior prohibited inmates
from requesting or soliciting goods or services from any
person other than an immediate family member without the
consent or approval of the Superintendent or his designee. 51
49 (Dkt. No. 37, Part 16, ¶ 7 [Antonelli Aff.]; Dkt. No.
37, Part 2, ¶ 14 [Defs.' Rule 7.1 Statement, asserting
this fact]; Dkt. No. 42, Part 1, ¶ 14 [Plf.'s Response,
not denying this fact, only asserting that he received
permission to assist Inmate Alicvar from Defendant
Holt].) See also 7 N.Y.C.R.R. § 270.02[B][26][vii].
50 (Dkt. No. 37, Part 3, ¶ 7 [Woods Aff.]; Dkt. No. 37,
Part 16, ¶ 8 [Antonelli Aff.]; Dkt. No. 37, Part 2, ¶
10 [Defs.' Rule 7.1 Statement, asserting this fact];
Dkt. No. 42, Part 1, ¶ 10 [Plf.'s Response, admitting
this fact].) See also 7 N.Y.C.R.R. § 270.02[B][14]
[v].
51 (Dkt. No. 37, Part 16, ¶ 9 [Antonelli Aff.]; Dkt. No.
37, Part 2, ¶ 19 [Defs.' Rule 7.1 Statement, asserting
this fact]; Dkt. No. 42, Part 1, ¶ 19 [Plf.'s Response,
not specifically denying this fact, only denying
that he indeed requested or solicited “goods or
services” from Inmate Alcivar's daughters].) See
also 7 N.Y.C.R.R. § 270.02[B][4][ii].
*8 22. On September 6, 2002, Plaintiff received a
disciplinary hearing, conducted by Defendant Antonelli. 52
Defendant Antonelli found Plaintiff guilty of all three charges,
and imposed the following penalties: 90 days in S.H.U., 90
days loss of packages privileges, 90 days loss of commissary
privileges, 90 days loss of telephone privileges, and three
months loss of “good time” credits . 53 In reaching his finding
of guilt, Defendant Antonelli relied on (1) the assertions by
Defendants Belarge and O'Donnell in Plaintiff's misbehavior
report that Plaintiff had made certain admissions to them
during an interview, (2) Defendant Antonelli's belief that
Plaintiff had made certain admissions in his correspondence
to Inmate Alcivar's daughters, and (3) Defendant Antonelli's
understanding that certain legal materials belonging to Inmate
Alcivar had been found in Plaintiff's cell (or “cube”). 54
52 (Dkt. No. 37, Part 2, ¶ 30 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part 1,
¶ 30 [Plf.'s Response, admitting this fact].)
53 (Dkt. No. 37, Part 2, ¶ 31 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part 1,
¶ 31 [Plf.'s Response, admitting this fact].)
54 (Dkt. No. 37, Part 16, ¶¶ 4-6, 11 [Antonelli Aff.,
asserting this fact]; Dkt. No. 42, Part 1, ¶¶ 4-6,
11 [Plf.'s Response to Antonelli Aff., admitting
part of this fact, not specifically controverting the
rest of this fact, and, in any event not citing any
admissible evidence in support of any denial of
this fact]; Dkt. No. 38, Part 4 at 43-44 [exhibit to
Plaintiff's motion for summary judgment, attaching
Defendant Antonelli's written hearing decision];
Dkt. No. 5, ¶ 17 [Am. Compl., acknowledging
that Defendant Antonelli had, in reaching his
decision, relied on, among other things, Plaintiff's
misbehavior report and various letters between
Plaintiff and Inmate Alcivar's daughters].)
23. Also on September 6, 2002, Plaintiff appealed Defendant
Antonelli's disciplinary decision to Donald Seksky, Director
of DOCS' Special Housing/Inmate Disciplinary Program,
who affirmed that decision on October 28, 2002. 55 Plaintiff's
appeal did not complain about any lack or denial of witnesses
at his disciplinary hearing; similarly, Mr. Selky's appellate
decision did not address such a complaint. 56
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55 (Dkt. No. 37, Part 2, ¶ 32 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part 1,
¶ 32 [Plf.'s Response, admitting this fact]; Dkt. No.
42, Part 23 at 46-48 [Munkowitz Decl., attaching
transcript of Plaintiff's deposition, in which he
discusses the appeal]; Dkt. No. 38, Part 3 at 46,
68 [exhibits to Plaintiff's motion for summary
judgment, attaching his appeal and Mr. Selsky's
affirmance].)
56 (Dkt. No. 42, Part 23 at 46-48 [Munkowitz
Decl., attaching transcript of Plaintiff's deposition,
in which he discusses his one-page appeal and
acknowledges that it did not complain about any
lack or denial of witnesses]; Dkt. No. 38, Part 3 at
46, 68 [exhibits to Plaintiff's motion for summary
judgment, attaching his appeal and Mr. Selsky's
affirmance].)
24. On October 24, 2002, Greene C.F. officials conducted a
discretionary review of Plaintiff's SHU sentence. 57 Based
upon this review, Plaintiff's SHU time was reduced from 90
days to 75 days. 58 However, Plaintiff's good time loss was
unaffected by the discretionary review. 59
57 (Dkt. No. 37, Part 2, ¶ 31 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶
3 1 [Plf.'s Response, admitting part of this fact, not
specifically controverting the rest of this fact, and,
in any event not citing any admissible evidence in
support of any denial of this fact]; Dkt. No. 37, Part
8, ¶ 8 [Belarge Aff.].)
58 (Id.)
59 (Id.)
Meetings Between Defendants
Woods, Belarge and O'Donnell
25. At some point between August 5, 2002, and August
31, 2002, Defendant Woods met with Defendant Belarge
to discuss Plaintiff. 60 Defendant Belarge then met with
Defendant O'Donnell to discuss Plaintiff. 61
60 (Dkt. No. 37, Part 2, ¶ 37 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part 1,
¶ 37 [Plf.'s Response, not specifically controverting
this fact, and, in any event not citing any admissible
evidence in support of any denial of this fact]; Dkt.
No. 37, Part 3, ¶¶ 9, 13 [Wood Aff.]; Dkt. No. 37,
Part 8, ¶¶ 3, 9 [Belarge Aff.]; Dkt. No. 42, Part 23
at 35-37 [Munkowitz Decl., attaching transcript of
Plaintiff's deposition, asserting that such a meeting
took place between Defendants Woods and Belarge
at some point].)
61 (Dkt. No. 37, Part 2, ¶ 3 8 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part
1, ¶ 3 8 [Plf.'s Response, admitting this fact];
Dkt. No. 37, Part 8, ¶ 9 [Belarge Aff.]; Dkt. No.
42, Part 22 at 35-37 [Munkowitz Decl., attaching
transcript of Plaintiff's deposition, asserting that
such a meeting took place between Defendants
Belarge and O'Donnell at some point].)
26. Both meetings (which were held prior to the issuance
of Plaintiff's misbehavior report on August 31, 2002) were
held according to standard procedure at Greene C.F. 62
Specifically, the purpose of the meetings was to discuss how
to investigate whether Plaintiff had violated prison rules. 63
62 (Dkt. No. 37, Part 2, ¶ 39 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part 1,
¶ 39 [Plf.'s Response, not specifically controverting
that the pre-misbehavior report meeting between
Defendants Woods and Belarge, and the pre-
misbehavior report meeting between Defendants
Belarge and O'Donnell, were held according to
standard procedure at Greene C.F., and, in any
event not citing any admissible evidence in support
of any denial of this fact]; Dkt. No. 37, Part
3, ¶ 13 [Wood Aff.]; Dkt. No. 37, Part 8, ¶ 9
[Belarge Aff.]; Dkt. No. 37, Part 19, ¶ 2 [Holden
Aff., disclaiming any knowledge about an alleged
unlawful meeting between Defendants Woods,
Belarge, and O'Donnell concerning Plaintiff].)
63 (Dkt. No. 37, Part 2, ¶¶ 37-39 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part
1, ¶¶ 37-39 [Plf.'s Response, not specifically
controverting this fact, and, in any event not
citing any admissible evidence in support of
any denial of this fact]; Dkt. No. 37, Part 3, ¶
13 [Wood Aff.]; Dkt. No. 37, Part 8, ¶¶ 3, 9
[Belarge Aff.]; Dkt. No. 37, Part 19, ¶ 2 [Holden
Aff., disclaiming any knowledge about an alleged
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unlawful meeting between Defendants Woods,
Belarge, and O'Donnell concerning Plaintiff].)
Plaintiff's Bunk(s) in SHU
27. As a result of his disciplinary conviction, Plaintiff was
housed in Greene C.F.'s SHU from approximately September
6, 2002, to November 21, 2002. 64
64 (Dkt. No. 5, ¶¶ 26, 37 [Am. Comp.]; Dkt. No. 37,
Part 23, Ex. A at 57-58 [Munkwitz Decl., attaching
transcript of Plaintiff's deposition]; Dkt. No. 42,
Part 1, ¶ 43 [Plf.'s Rule 7.1 Response, stating,
“Plaintiff left S-Block November 21, 2002....”].)
28. At no point (either during or after the above-described
time period) did Plaintiff file any written grievances, or
submit any letters of complaint, about an alleged defect in any
of the bunk beds that he was assigned while in SHU. 65
65 (Dkt. No. 37, Part 2, ¶ 41 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part 1,
¶ 41 [Plf.'s Response, not specifically controverting
this fact]; Dkt. No. 37, Part 23, Ex. A at 58-62
[Munkwitz Decl., attaching transcript of Plaintiff's
deposition, in which he acknowledged this fact];
Dkt. No. 48, Part 6 [Belin Aff.].)
29. On February 8, 2005, Defendant Belarge had photographs
taken of the bunk beds that Plaintiff was assigned while
he was in SHU; and on April 22, 2005, Defendant Belarge
had photographs taken of the other bunk beds that Plaintiff
suggests he may have been assigned. 66 Those photographs
are made part of the record at Exhibit A to the February 10,
2005, Affidavit of Defendant Belarge, and at Exhibits A and
B to the April 29, 2005, Affidavit of Kenneth Scattergood. 67
Between September 6, 2002, and February 10, 2005, there
was no record of any repairs made to any of the bunk beds that
Plaintiff was assigned while in SHU; and between September
6, 2002, and April 22, 2005, there was no record of any repairs
made to any of the other bunk beds that Plaintiff suggests he
may have been assigned while in SHU. 68
66 (Dkt. No. 37, Part 2, ¶ 42 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part
1, ¶ 42 [Plf.'s Rule 7.1 Response, not specifically
controverting this fact, and in any event not citing
any admissible evidence in support of any denial
of this fact]; Dkt. No. 37, Part 8, ¶¶ 11-12 [Belarge
Aff.]; Dkt. No. 37, Parts 9-12 [Ex. A to Belarge
Aff., attaching photographs]; Dkt. No. 48, Parts 4,
8-17 [Defs.' reply affidavits and exhibits, attaching
photographs].)
67 (Dkt. No. 37, Part 8, ¶¶ 11-12 [Belarge Aff.];
Dkt. No. 37, Parts 9-12 [Ex. A to Belarge Aff.,
attaching photographs]; Dkt. No. 48, Parts 4,
8-17 [Defs.' reply affidavits and exhibits, attaching
photographs].)
68 (Dkt. No. 37, Part 2, ¶ 43 [Defs.' Rule 7.1
Statement, asserting this fact]; Dkt. No. 42, Part
1, ¶ 43 [Plf.'s Rule 7.1 Response, not specifically
controverting this fact, and in any event not citing
any admissible evidence in support of any denial
of this fact]; Dkt. No. 37, Part 8, ¶¶ 13-14 [Belarge
Aff.]; Dkt. No. 37, Parts 13-15, Ex. B [Belarge
Aff., attaching work orders]; Dkt. No. 48, Parts 4-5
[Defs.' reply affidavit and exhibits, attaching work
orders].)
III. ANALYSIS
A. Whether Plaintiff Has Failed to Establish (or Even
State) a First Amendment Retaliation Claim
*9 In their memorandum of law, Defendants argue that
Plaintiff has failed to establish (or even state) a First
Amendment retaliation claim against Defendant Antonelli
because (1) he fails to establish that he had been engaging in
speech or conduct that is protected by the First Amendment,
and (2) in any event, he fails to establish a causal link
between that protected activity and any adverse action against
him by Defendant Antonelli. (Dkt. No. 37, Part 25 at
15-16 [Defs.' Mem. of Law].) Liberally construed, Plaintiff's
response papers argue that (1) he had a constitutionally
protected liberty right to make an oral and written complaint
about Defendant Antontelli's management of the prison
mess hall, and (2) as a result of Plaintiff's complaints (and
an “encounter” between Plaintiff and Antonelli one week
before Plaintiff's disciplinary hearing), Defendant Antonelli
retaliated against Plaintiff during Plaintiff's disciplinary
hearing by, among other things, depriving Plaintiff of his
statutorily protected right to receive “good time” credits
(which would have accelerated Plaintiff's release on parole).
(Dkt. No. 42, Part 2 at 9 [Plf.'s Response].)
Claims of retaliation like those asserted by Plaintiff find their
roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d
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379, 380-81 (2d Cir.2004). Central to such claims is the notion
that in a prison setting, corrections officials may not take
actions which would have a chilling effect upon an inmate's
exercise of First Amendment rights. See Gill, 389 F.3d at
381-383. Because of the relative ease with which claims of
retaliation can be incanted, however, courts have scrutinized
such retaliation claims with “skepticism and particular care.”
Colon v. Coughlin, 58 F.3d 865, 872 (2d. Cir.1995); see also
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). As the
Second Circuit has noted,
[t]his is true for several reasons. First,
claims of retaliation are difficult to
dispose of on the pleadings because
they involve questions of intent and
are therefore easily fabricated. Second,
prisoners' claims of retaliation pose a
substantial risk of unwarranted judicial
intrusion into matters of general prison
administration. This is so because
virtually any adverse action taken
against a prisoner by a prison official-
even those otherwise not rising to the
level of a constitutional violation-can
be characterized as a constitutionally
proscribed retaliatory act.
Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) (citations
omitted), overruled on other grounds, Swierkewicz v. Sorema
N.A., 534 U.S. 506 (2002).
To prevail on a First Amendment claim under 42 U.S.C.
§ 1983, a Plaintiff must prove by the preponderance of
the evidence that: (1) the speech or conduct at issue was
“protected”; (2) the defendants took “adverse action” against
the plaintiff-namely, action that would deter a similarly
situated individual of ordinary firmness from exercising his or
her constitutional rights; and (3) there was a causal connection
between the protected speech and the adverse action-in other
words, that the protected conduct was a “substantial or
motivating factor” in the defendants' decision to take action
against the plaintiff. Mount Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Gill, 389 F.3d at 380
(citing Dawes v. Walker, 239 F.3d 489, 492 [2d. Cir.2001] ).
Under this analysis, adverse action taken for both proper and
improper reasons may be upheld if the action would have
been taken based on the proper reasons alone. Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).
*10 Here, Plaintiff's claim fails for several reasons. I
acknowledge that the First Amendment protects, not only
the filing of written grievances and complaints, but, under
some circumstances, the making of oral complaints to
corrections officers. 69 However, even assuming Plaintiff
had a constitutionally protected right to make both written
and oral complaints about Defendant Antonelli, no evidence
exists establishing (or even suggesting) that any complaints
by Plaintiff against Defendant Antonelli impacted Defendant
Antonelli's disciplinary decision.
69 See Malik'El v. N.Y. State DOCS, 96-CV-0669,
1998 U.S. Dist. LEXIS 5471, at *7 & n.
1 (N.D.N.Y. March 4, 1998) (Sharpe, M.J .)
(under circumstances, plaintiff's oral complaint to
corrections officer might state a First Amendment
claim), adopted by 1998 U.S. Dist. 5465 (N.D.N.Y.
Apr. 8, 1998) (Pooler, D.J.); but see Rodriguez
v. Phillips, 66 F.3d 470, 479 (2d Cir.1995)
(“In the context of the confrontation described
in [the plaintiff's] own words, there was no
clearly established First Amendment right to
approach and speak to Officer Rubin.”) (emphasis
added); Garrido v. Coughlin, 716 F.Supp. 98, 101
(S.D.N.Y.1989) (plaintiff's “verbal confrontation”
with corrections officer was not protected speech
or conduct under the First Amendment).
For example, no evidence exists that Plaintiff submitted any
grievances or complaints against Defendant Antonelli, only
that he submitted a letter to Deputy Superintendent Eldred
complaining about “Mess Hall Dishwashing Machines”
approximately three weeks before the disciplinary hearing. 70
Plaintiff's letter did not mention Defendant Antonelli. 71
In any event, no evidence exists indicating that Defendant
Antonelli knew about any grievances against him by Plaintiff
at the time of Plaintiff's disciplinary hearing. 72 Similarly, no
evidence exists that he ever confronted Defendant Antonelli
with an oral complaint about the mess hall-other than
Plaintiff's vague and uncorroborated assertions that he “met”
with, or had an “encounter” with, Defendant Antonelli about
the mess hall before the disciplinary hearing. 73 Finally, the
record evidence establishes that Defendant Antonelli could,
and indeed would, have reached the same disciplinary hearing
decision (and imposed the same penalties) despite any such
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complaints or grievances by Plaintiff (i.e., based upon the
evidence as presented to him at Plaintiff's disciplinary hearing
decision). 74
70 (Dkt. No. 48, Parts 6-7, ¶ 6 [Berlin Aff., testifying
that the only grievance on file from Plaintiff, from
between August 2002 to December 2002 was a
grievance dated 8/8/02 about the legal mail limit at
Greene C.F., attaching that grievance at Exhibit A];
Dkt. No. 37, Part 24 [Munkowitz Decl., attaching
Plaintiff's 8/16/02 letter of complaint to Deputy
Superintendent Eldred regarding the “Mess Hall
Dishwashing Machines”]; Dkt. No. 37, Part 23, Ex.
A at 86-90 [Munkwitz Decl., attaching transcript of
Plaintiff's deposition].)
71 (Dkt. No. 37, Part 24 [Munkowitz Decl.,
attaching Plaintiff's 8/16/02 letter of complaint
to Deputy Superintendent Eldred regarding the
mess hall dishwashing machines, not mentioning
any specifics, much less the name or position of
Defendant Antonelli]; Dkt. No. 37, Part 23, Ex. A
at 86-90 [Munkwitz Decl., attaching transcript of
Plaintiff's deposition, in which Plaintiff admits this
fact].)
72 (Dkt. No. 37, Part 17, ¶ 13 [Antonelli Aff.,
testifying that “I ... understand that plaintiff
alleges that I retaliated against him based upon
a grievance that plaintiff made against me. I am
not aware of any grievances filed by plaintiff
against me”]; Dkt. No. 42, Part 1, ¶ 12 [Plf.'s
Response to Antonelli Aff., containing no response
to Paragraph 13 of Antonelli's affidavit, and
asserting conclusorily that “[the tier office] had
chosen Antonelli to preside over plaintiff's tier
hearing on September 6, 2002 ... and that was due to
Antonelli's encounter with plaintiff one week prior
to holding said hearing,” without providing any
specifics about the alleged “encounter,” without
providing any assertion that it was Antonelli who
was motivated by the alleged “encounter,” and
without providing reason to believe Plaintiff had
personal knowledge of the Tier Office's motivation
in assigning Antonelli as the hearing officer].)
73 (Dkt. No. 42, Part 1¶ 12 [Plf.'s Response to
Antonelli Aff., asserting that, one week before the
disciplinary hearing, Plaintiff had an “encounter”
with Defendant Antonelli]; Dkt. No. 37, Part 23,
Ex. A at 89 [Munkwitz Decl., attaching transcript
of Plaintiff's deposition, in which Plaintiff states
that, days before the disciplinary hearing, he “met”
with Defendant Antonelli about the condition of the
“utensils, dish washing machines, et cetera” in the
mess hall].)
74 (See, supra, Statement of Fact Nos. 22-23 [stating
evidence upon which Defendant Antonelli based
his hearing decision, and fact that the decision was
affirmed on appeal].)
As a result, I recommend that the Court dismiss Plaintiff's
First Amendment retaliation claim.
B. Whether Plaintiff Has Failed to State a Fourth
Amendment Claim
I do not construe Defendants' memorandum of law as
expressly arguing that any Fourth Amendment claim asserted
by Plaintiff should be dismissed for failure to state a claim
under Rule 12(b)(1) of the Federal Rules of Civil Procedure,
which permits motions to dismiss for “lack of jurisdiction
over the subject matter” of a claim. However, I do construe
that memorandum of law, as well as defense counsel's
questions of Plaintiff during his deposition, as suggesting
that Plaintiff has failed to assert a Fourth Amendment claim
(regarding the search of his property by Defendants at
Greene C.F.) over which federal courts have subject matter
jurisdiction. 75
75 (Dkt. No. 37, Part 25 at 8-9 [Defs.' Mem. of
Law, addressing the conclusory nature of Plaintiff's
claims about a “conspiracy” against him, the
subject of which included the search of his
property]; Dkt. No. 37, Part 22, Ex. A at 14
[Munkwitz Decl., attaching transcript of Plaintiff's
deposition, in which defense counsel stated, “I
don't see how the [F]ourth [A]mendment gives
you a right to be free from harmful situations.
So I would like you to explain that to me,” and
Plaintiff stated, “[T]he [F]ourth [A]mendment does
not apply to the specific paragraph that you are
referring to,” i.e., Paragraph 43 of the Amended
Complaint], 22 [in which defense counsel asked,
“Is there anything else in your second cause of
action ...” other than a due process claim, and
Plaintiff answered, “Not at this point, ma‘am”
even though that cause of action cites the Fourth
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Amendment], 26 [in which defense counsel asked,
“You have a constitutional right to be free from
search and seizure as an inmate?” and Plaintiff
answered, “As an inmate, no, ma‘am”].) See
Clissuras v. CUNY, 359 F.3d 79, 81 n. 3 (2d
Cir.2004) (treating a “suggestion” to the court, in
the form of a letter, that subject matter jurisdiction
was lacking as a request for a dismissal order under
Rule 12[h][3] ).
Under Rule 12 of the Federal Rules of Civil Procedure,
“[w]henever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.” Fed.R.Civ.P. 12(h)
(3). Thus, the Court has a duty to examine whether or not it has
subject matter jurisdiction over Plaintiff's attempted Fourth
Amendment claim.
Here, I find that the Court does not have subject matter
jurisdiction (pursuant to 42 U.S.C. § 1983 or otherwise)
over that claim, which is asserted in Paragraphs 44 and
15 of Plaintiff's Amended Complaint. 76 Specifically, the
allegations contained in Paragraph 15 of his Amended
Complaint are the sole factual basis for Plaintiff's Fourth
Amendment claim. 77 In pertinent part, that paragraph alleges
that on “August 31, 2002, 11:20 A.M., Belarge ... had
plaintiff's personal property searched [for Alcivar's materials]
by three officers, one of whom was Holt....” 78
76 (See Dkt. No. 5, ¶ 44 [Plf.'s Am. Compl., alleging
that Defendants Woods and Holt “violat[ed]
plaintiff's 4th ... Amendment [ ] rights”], ¶ 15
[alleging that Defendant Belarge “had plaintiff's
personal property searched by three officers, one
of whom was Holt”]; Dkt. No. 37, Part 23, Ex.
A at 14-22, 26-28 [Munkowitz Decl., attaching
transcript of deposition of Plaintiff, in which he
explains his claim under the Fourth Amendment
based on the alleged unjustified search and seizure
of his property].)
77 (Dkt. No. 37, Part 22, Ex. A at 14 [Munkwitz
Decl., attaching transcript of Plaintiff's deposition,
in which Plaintiff stated, “[T]he [F]ourth
[A]mendment does not apply to” Plaintiff's first
cause of action], 22 [in which defense counsel
asked, “Is there anything else in your second cause
of action ...” other than a due process claim, and
Plaintiff answered, “Not at this point, ma‘am”
even though the cause of action cites the Fourth
Amendment], 28 [in which defense counsel asked,
“Are you alleging that the facts in paragraph 15
give rise to a constitutional claim for search and
seizure?” and Plaintiff answered, “Yes, ma‘am”].)
78 (Dkt. No. 5, ¶ 14 [Am. Compl.].)
*11 The problem with Plaintiff's Fourth Amendment claim
is that, even if the search occurred as Plaintiff alleged, that
search was of a prisoner's cell (or “cube”). “[T]he Fourth
Amendment proscription against unreasonable searches does
not apply within the confines of a prison cell.” Hudson v.
Palmer, 468 U.S. 517, 526 (1984). 79 Nor does the Fourth
Amendment proscription apply within the confines of a prison
“cube.” 80 Indeed, Plaintiff appears to recognize this point of
law. 81
79 See also Tinsley v. Greene, 95-CV-1765, 1997
WL 160124, at *7 (N.D.N.Y. March 31, 1997)
(“Plaintiff thus may assert no cause of action
here based on an alleged violation of his
Fourth Amendment rights.”); Demaio v. Mann,
877 F.Supp. 89, 95 (N.D.N.Y.) (“Searches of
prison cells, even arbitrary searches, implicate no
protected constitutional rights.”), aff'd, 122 F.3d
1055 (2d Cir.1995).
80 See Freeman v. Goord, 02-CV-9033, 2005 U.S.
Dist. LEXIS 32019, at *5 & n. 4 (S.D.N.Y.
Dec. 7, 1995) (granting defendants' motion for
summary judgment, in part because plaintiff had no
reasonable expectation of privacy, under the Fourth
Amendment, in his cell, which plaintiff referred
to as his “cube”); Rodriguez v. Coughlin, 795
F.Supp. 609, 611, 613 (W.D.N.Y.1992) (granting
defendants' motion for summary judgment, in part
because prison officials have same need, and right,
to search prisoner's “cell” as his “cubicle”).
81 (Dkt. No. 37, Part 22, Ex. A at 26 [Munkwitz
Decl., attaching transcript of Plaintiff's deposition,
in which defense counsel asked, “You have a
constitutional right to be free from search and
seizure as an inmate?” and Plaintiff answered, “As
an inmate, no, ma‘am”].)
I note that I do not liberally construe Plaintiff's Amended
Complaint as asserting a Fourth Amendment claim against
Defendant Woods for (allegedly) unreasonably searching and
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seizing various pieces of Plaintiff's outgoing and incoming
mail in August of 2002. However, even if I did so construe
that Amended Complaint, I would conclude that this Court
would not have subject matter jurisdiction over that claim.
The only portion of Plaintiff's Amended Complaint that
regards such a search and seizure by Defendant Woods of
Plaintiff's mail is vague and conclusory. 82 Even taking as
true Plaintiff's allegations, the mail in question consisted
of clearly identifiable contraband (e.g., legal materials
belonging to Inmate Alcivar in packages to, or from, persons
bearing the last name of Alcivar). 83 I fail to see how
any search and confiscation of such contraband would have
violated the Fourth Amendment. Indeed, such a search and
confiscation would appear to have been expressly authorized
by DOCS Directive No. 4422 (which regards the Inmate
Correspondence Program). 84
82 (Dkt. No. 5, ¶ 12 [Am. Compl.].)
83 I note that the alleged “interception” by Defendant
Woods of these packages was preceded by a letter
from Plaintiff to Woods referring to “documents
[belonging to Inmate Alcivar] being in [Plaintiff's]
possession” and referring to Inmate Alcivar's
family members. Furthermore, I note that the
alleged contents of these packages would have
reasonably appeared (at the very least) to consist
of contraband (i.e., allegedly being the same
documents that later gave rise to three disciplinary
charges against Plaintiff, which charges resulted in
a conviction that was affirmed on appeal).
84 See, e.g., DOCS Directive No. 4422, § III.B.17.
(“Inmates shall not be permitted to use their
correspondence privileges to solicit ... services,
or goods.”), § III.G.1. (“All incoming general
correspondence will be opened and inspected for ...
photocopied materials, or contraband.”) (5/18/02).
As a result, I recommend that the Court dismiss Plaintiff's
Fourth Amendment claim.
C. Whether Plaintiff Has Failed to Establish (or Even
State) an Eighth Amendment Claim
In their memorandum of law, Defendants argue that Plaintiff
has failed to establish (or even state) an Eighth Amendment
claim because (1) Plaintiff has not established (or even
alleged) a deprivation that is “sufficiently serious” for
purposes of the Eighth Amendment, and (2) he has not
established that Defendants were deliberately indifferent to
Plaintiff's health or safety. (Dkt. No. 37, Part 25 at 11,
13-14 [Defs.' Mem. of Law].) Liberally construed, Plaintiff's
response papers argue that (1) he has established a deprivation
that is “sufficiently serious” through his evidence that he
experienced a back injury while in SHU as a result of his
“twisted bunk,” and (2) he has established such deliberate
indifference through his testimony that he orally complained
to Defendants Woods and Belarge (as well as others) of his
back injury and the fact that they “ignored” his complaints.
(Dkt. No. 42, Part 2 at 13-15 [Plf.'s Response].)
“[A] prison official violates the Eighth Amendment only
when two requirements are met. First, the deprivation must
be, objectively, ‘sufficiently serious'.... [Second,] a prison
official must have a ‘sufficiently culpable state of mind.’ “
Farmer v. Brennan, 511 U.S. 825, 834 (1994). “In prison-
conditions cases that state of mind is one of deliberate
indifference to inmate health or safety....” Farmer, 511 U.S.
at 834.
*12 With regard to the first element, “the plaintiff must
demonstrate that the conditions of his confinement resulted
in ‘unquestioned and serious deprivations of basic human
needs' or ‘deprive inmates of the minimal civilized measures
of life's necessities.’ “ Davidson v. Murray, 371 F.Supp.2d
361, 370 (W .D.N.Y.2005) (citing Rhodes v. Chapman, 452
U.S. 337, 347 [1981] ). “As recognized by the Supreme Court
in Rhodes, ‘the Constitution does not mandate comfortable
prisons,’ ... and conditions that are ‘restrictive and even
harsh ... are part of the penalty that criminal offenders pay for
their offenses against society.’ “ Davidson, 371 F.Supp.2d at
370 (quoting Rhodes, 452 U.S. at 347, 349).
With regard to the second element, “[i]n prison-conditions
cases [the requisite] state of mind is one of deliberate
indifference to inmate health or safety....” Farmer, 511 U.S.
at 834. “[D]eliberate indifference describes a state of mind
more blameworthy than negligence.” Id. at 835. “Deliberate
indifference” exists if an official “knows of and disregards an
excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also
draw the inference.” Id. at 837.
1. Sufficiently Serious Deprivation
Plaintiff alleges that he was diagnosed with
“spondylolisthesis” 85 in September of 2002 as a result of
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sleeping on a defective bed. 86 As far as I can tell from
available reported decisions, all federal courts faced with
evidence of such an injury on a dispositive motion in a
prisoner civil rights case explicitly or implicitly assume,
for the sake of argument, that the injury constitutes a
serious medical need. 87 I do not make such an assumption
here because, unlike the prisoners in those other civil
rights cases, Plaintiff does not allege that his Eighth
Amendment deprivation consisted of his “spondylolisthesis”
but his defective (or “twisted”) bunk bed. In addition
to being supported by the express language of Plaintiff's
Amended Complaint, 88 this reading of Plaintiff's allegations
is supported by his testimony in his deposition that he is
not asserting a claim that the medical staff was deliberately
indifferent to any serious medical need. 89
85 “Spondylolisthesis” is defined as “forward
movement of the body of one of the lower lumbar
vertebrae on the vertebra below it, or upon the
sacrum.” Rowland v. Hildreth, 92-CV-6140, 1993
U.S. Dist. LEXIS 10233, at *35, n. 6 (S.D.N.Y. July
27, 1993) (citing Stedman's Medical Dictionary at
1456 [25th ed.1990] ).
86 (Dkt. No. 5, ¶ 27 [Am. Compl.]; Dkt. No. 38,
Part 4 at 58-62 [Plf.'s Motion for Summary
Judgment, attaching medical records repeatedly
stating “spondylolisthesis”]; Dkt. No. 37, Part 23
at 54-58 [Munkowitz Decl., attaching transcript of
Plaintiff's deposition testimony, in which Plaintiff
describes his injury generally].)
87 See Villante v. N.Y. State DOCS, 96-CV-1484, 2002
U.S. Dist. LEXIS 26279, at *4, 8-9 (N.D.N.Y.
March 28, 2002) (Mordue, J.), adopting report-
recommendation, 2002 U.S. Dist. LEXIS, at
*11-12 (N.D.N.Y. Oct. 26, 2001) (Homer, M.J.);
Rowland, 1993 U.S. Dist. LEXIS 10233, at *13-16,
30; Smith v. Umar, 89-CV-6988, 1989 U.S. Dist.
LEXIS 14170, at *4-6, 8-10 (E.D.Pa. Nov. 28,
1989).
88 (Dkt. No. 5, ¶¶ 35, 37, 38, 43 [Am. Compl.,
alleging that Defendants-who are non-medical
personnel-violated Plaintiff's Eighth Amendment
rights by placing him in, and keeping him in,
SHU, despite knowing of the allegedly substandard
conditions there, which included his allegedly
defective bunk].)
89 (Dkt. No. 37, Part 23 at 42-43, 53, 58 [Munkowitz
Decl., attaching transcript of Plaintiff's deposition
testimony, in which Plaintiff testifies that he was
not asserting any claim regarding the medical
treatment that he received, or that the medical staff
was deliberately indifferent to a serious medical
need].)
This is apparently why Defendants, in their motions papers,
do not challenge Plaintiff's allegation that he suffered from
“spondylolisthesis,” but do challenge his allegation that he
was assigned a bunk bed that was in any way defective. 90
In support of that argument, Defendants submit evidence that
none of the bunk beds to which Plaintiff was assigned while
in SHU (1) showed any visible defects (much less the defect
that Plaintiff alleges, i.e., being “twisted”) at or after the time
in question, and (2) were either complained about by other
inmates or repaired at or after the time in question. 91
90 (Dkt. No. 37, Part 25 at 14 [Defs.' Mem. of Law,
arguing that “plaintiff cannot demonstrate that his
bunk was ‘damaged’ in any manner,” citing record
evidence in an attempt to support that argument].)
91 (See, supra, Statement of Fact No. 29.)
*13 More convincing, however, is the temporal disconnect
between the onset of Plaintiff's back injury and his assignment
to the allegedly defective bunk bed in question. Although
Defendants do not appear to argue that the onset of Plaintiff's
injury pre-dated his assignment to the allegedly defective
bunk bed, 92 there is evidence indicating that Plaintiff's
back injury existed before he was assigned to the allegedly
defective bunk bed (i.e., Bunk Number “OS-A1-20(b)”) on
September 23, 2002. 93 There is even evidence indicating that
Plaintiff's back injury existed before he was admitted to SHU
on September 6, 2002. 94
92 (Dkt. No. 37, Part 25 at 11, 13-14 [Defs.' Mem. of
Law].)
93 (Compare Dkt. No. 42, Part 1, ¶¶ 10(a), 11
[Plf.'s Response to Belarge Aff., swearing that
he was assigned to the allegedly “dilapidated”
bunk in question-Bunk Number “OS-A1-20(b)”-on
9/23/02, after having been assigned to two different
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SHU cells, i.e., first in Cell “SH-0013” and then
in Cell “B1-18”] with Dkt. No. 5, ¶¶ 26-27 [Plf.'s
Am. Compl., containing a sworn allegation that the
onset of his back injury was on or before 9/13/02,
and that the date of diagnosis was 9/20/02] and Dkt.
No. 42, Part 1, ¶ 15 [Plf.'s Response to Belarge
Aff., swearing that he orally complained to Belarge
about the bunk on 9/18/02] and Dkt. No. 37, Part
23 at 58 [Munkowitz Decl., attaching transcript of
Plaintiff's deposition testimony, in which Plaintiff
testifies that he first requested sick call on 9/9/02,
or three days after his admission to SHU].)
94 (Dkt. No. 38, Part 4 at 58-62 [Plf.'s Motion
for Summary Judgment, attaching medical record
printed on 9/9/02 containing a typed notation,
apparently entered on 8/23/02 stating, “Reason for
Consultation: H/O sciatica type pain which has
responded to PT in the past. I request a repeat
treatment series for 6 weeks” and noting that
Plaintiff was 51 years old at the time] [emphasis
added].)
Even if Plaintiff were alleging that his back injury existed
before September 6, 2002, but that his injury was exacerbated
by his various bunk beds while in SHU, I would reach the
same conclusion. As I described above, the first element
of the Eighth Amendment's two-part test is “objective,” not
“subjective.” Simply stated, the Eighth Amendment does
not mandate “comfortable” bunk beds. 95 For these reasons,
I find that Plaintiff has failed to establish a “sufficiently
serious” deprivation for purposes of the Eighth Amendment.
95 See Faunce v. Gomez, No. 97-16943, 1998
U.S.App. LEXIS. 22703, at *3 (9th Cir. Sept.
14, 1998) (affirming district court's grant of
summary judgment to defendants in part because
the plaintiff's Eighth Amendment claim was
premised on his complaint that his mattress was
uncomfortable and his bedding was insufficient);
Page v. Kirby, 314 F.Supp.2d 619, 620 (N.D.W.Va.)
(dismissing prisoner's Eighth Amendment claim
premised on complaint that his mattress was
uncomfortable); Levi v. District of Columbia,
92-CV-2653, 1993 U.S. Dist. LEXIS 1948, at
*5 (D.D.C. Feb. 24, 1993) dismissing prisoner's
Eighth Amendment claim premised on complaint
that his mattress was uncomfortable).
2. Deliberate Indifference
Even if Plaintiff had established a “sufficiently serious”
deprivation for purposes of the Eighth Amendment, I would
find that he has not established that Defendants acted with
deliberate indifference to Plaintiff's health or safety.
To the extent that Plaintiff alleges that any of the Defendants
“knew” that Plaintiff would be assigned to an allegedly
defective bunk (Bunk Number “OS-A1-20(b)” in Cell
“A1-20”) before Plaintiff began his incarceration in the
Greene C.F. SHU on September 6, 2002, I find that
those allegations are wholly conclusory and without any
evidentiary support whatsoever in the record. (Dkt. No. 5, ¶¶
3 5, 37, 39, 43 [Am. Compl.].)
However, Plaintiff also asserts (rather conclusorily) that
Defendants knew about the allegedly defective bunk after
Plaintiff was assigned to it. 96 More specifically, Plaintiff
submits testimony that (1) he orally complained to Defendant
Woods about the bunk in question on or about September 27,
2002, (2) Plaintiff orally complained to Defendant Belarge
about the bunk in question on September 18, 2002, and (3)
Plaintiff orally complained to other corrections officers about
the bunk in question at various other times. 97 Setting aside
the lack of any testimony (of which I am aware) that Plaintiff
ever orally complained to Defendants O'Donnell, Antontelli
or Holt, there is a fatal flaw with Plaintiff's reliance on this
evidence.
96 (Dkt. No. 5, ¶ 38 [Am. Compl.].)
97 (See, e.g., Dkt. No. 42, Part 1, ¶ 15 [Plf.'s Response
to Belarge Aff., swearing that he orally complained
to Belarge about the bunk on September 18, 2002];
compare Dkt. No. 42, Part 1, ¶ 14 [Plf.'s Response
to Woods Aff., swearing that his oral complaint to
Woods was made on September 27, 2002] with Dkt.
No. 42, Part 2 at 13 [Mem. of Law, arguing that his
oral complaint to Woods was made on September
12, 2002].)
The problem is that, even if this evidence is true, there is
no evidence that Defendants or anyone “ignored” Plaintiff's
oral complaints. Indeed, the evidence shows that Plaintiff
was assigned to the allegedly defective bunk bed for only
about two weeks (between September 23, 2002, and October
7, 2002), and that he was then moved in response to his
oral complaints. 98 Any assertion by Plaintiff that Defendants
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Woods and Belarge, upon hearing Plaintiff orally complain
about the bunk, told Plaintiff to “[t]ell the officer about it” or
“tell it to the officer on the unit” does not indicate deliberate
indifference by supervisors such as Defendants Woods or
Belarge, especially given that Plaintiff was subsequently then
purposely assigned to a different bunk. 99
98 (Dkt. No. 37, Part 8, ¶ 11 [Belarge Aff., identifying
second bunk Plaintiff was assigned while in “S-
Block” as Bunk Number “OS-A1-20(b)”]; Dkt.
No. 42, Part 1, ¶ 11 [Plf.'s Response to Belarge
Aff., admitting that fact], ¶ 10(a) [swearing that he
was assigned to the allegedly “dilapidated” bunk
in question on 9/23/02], ¶ 10(b) [swearing that, at
9:45 p.m. on or about 10/7/02-fourteen days after
9/23/02-he was purposely moved to a cell “with a
better bunk,” i.e., Cell “B2-40”].) Any assertions
by Plaintiff to the contrary are purely conclusory,
self-contradictory, and frankly too incredible to be
believed by reasonable minds. (Dkt. No. 5, ¶ 28
[Am. Compl., alleging conclusorily that his verbal
complaints about his bunk bed “went unsolved”];
compare Dkt. No. 37, Part 23 at 58 [Munkowitz
Decl., attaching transcript of Plaintiff's deposition
testimony, in which Plaintiff testifies that he was
assigned to the same bunk bed during his entire
stay in SHU] with Dkt. No. 42, Part 1, ¶ 11
[Plf.'s Response to Belarge Aff., admitting that he
served his time in SHU in four different cells],
¶ 10(a) [swearing that he was not assigned to
the allegedly “dilapidated” bunk in question until
9/23/02, despite his admission to SHU on 9/6/02,
and that it was the third such bunk to which he had
been assigned in SHU], ¶ 10(b) [swearing that, at
9:45 p.m. on or about 10/7/02-fourteen days after
9/23/02-he was purposely moved to a cell “with a
better bunk,” i.e., Cell “B2-40”].)
99 (Compare Dkt. No. 42, Part 1, ¶ 14 [Plf.'s Response
to Woods Aff.] and Dkt. No. 42, Part 1, ¶ 15 [Plf.'s
Response to Belarge Aff.] with Dkt. No. 42, Part 1,
¶ 10(c) [Plf.'s Response to Belarge Aff.].)
*14 In addition, the evidence shows that no one at Greene
C.F. in any way interfered with the prompt and adequate
medical care provided to Plaintiff regarding his back. Plaintiff
acknowledges that his medical care at Greene C.F. included
the following: (1) a CAT scan on October 17, 2002, and
second CAT scan at some point between October 22, 2002,
and December 11, 2002, (2) physical therapy on October
24, November 5, November 8, and November 18, 2002; (3)
an MRI examination on January 10, 2003; and (4) being
provided “pain killers” on September 13, 2002, five packets
of Naproxen (500 mg. each) on December 11, 2002, and more
“pain killers” on or after January 10, 2003, along with a back
brace. 100
100 (Dkt. No. 5, ¶¶ 26-33 [Am. Compl.].)
Finally, I note that the evidence shows that, on October
24, 2002, Greene C.F. officials shortened Plaintiff's stay in
SHU 15 days (reducing his sentence in SHU from 90 days
to 15 days). 101 Under the circumstances, I find that no
reasonable fact-finder could conclude, based on the record
before me, that Defendants acted with deliberate indifference
to Plaintiff's health or safety
101 (See, supra, Statement of Fact No. 24.)
As a result, I recommend that the Court dismiss Plaintiff's
Eighth Amendment claim.
D. Whether Plaintiff Has Failed to Exhaust His Available
Administrative Remedies Regarding His Eighth
Amendment Claim
In their memorandum of law, Defendants argue Plaintiff
has failed to established that he exhausted his available
administrative remedies regarding his Eighth Amendment
claim because he acknowledges that he did not file a written
administrative grievance with respect to the alleged condition
of his bunk bed. (Dkt. No. 37, Part 25 at 11-13 [Defs.' Mem. of
Law].) Liberally construed, Plaintiff's response papers argue
that (1) no administrative remedy was available because a
complaint about a defective bunk bed is not a grievable matter,
(2) even if a complaint about a bunk bed were a grievable
matter, he was misled by the Supervisor of the Inmate
Grievance Resolution Committee (“IGRC”) into believing
that the matter was not grievable, and (3) in any event,
although he did not file a written grievance regarding his
bunk, he filed several oral complaints regarding the bunk
(i.e., to Defendant Woods, Defendant Belarge, the IGRC
Supervisor, and various other corrections officers and/or
sergeants). (Dkt. No. 42, Part 2 at 13-15 [Plf.'s Response].)
The Prison Litigation Reform Act of 1995 (“PLRA”) requires
that prisoners who bring suit in federal court must first
exhaust their available administrative remedies: “No action
shall be brought with respect to prison conditions under §
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1983 ... by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e. The Department
of Correctional Services (“DOCS”) has available a well-
established three-step grievance program:
First, an inmate is to file a
complaint with the Grievance Clerk. An
inmate grievance resolution committee
(“IGRC”) representative has seven
working days to informally resolve
the issue. If there is no resolution,
then the full IGRC conducts a hearing
and documents the decision. Second,
a grievant may appeal the IGRC
decision to the superintendent, whose
decision is documented. Third, a grievant
may appeal to the central office
review committee (“CORC”), which
must render a decision within twenty
working days of receiving the appeal, and
this decision is documented.
*15 White v. The State of New York, 00-CV-3434, 2002
U.S. Dist. LEXIS 18791, at *6 (S.D.N.Y. Oct 3, 2002)
(citing N.Y. Comp.Codes R. & Regs. Tit. 7, § 701.7).
Generally, if a prisoner has failed to follow each of these steps
prior to commencing litigation, he has failed to exhaust his
administrative remedies. Rodriguez v. Hahn, 209 F.Supp.2d
344, 347-48 (S.D.N.Y.2002); Reyes v. Punzal, 206 F.Supp.2d
431, 433 (W.D.N.Y.2002).
However, the Second Circuit has recently held that a three-
part inquiry is appropriate where a defendant contends that
a prisoner has failed to exhaust his available administrative
remedies, as required by the PLRA. See Hemphill v. State
of New York, 380 F.3d 680, 686, 691 (2d Cir.2004). First,
“the court must ask whether [the] administrative remedies
[not pursued by the prisoner] were in fact ‘available’ to
the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted).
Second, if those remedies were available, “the court should ...
inquire as to whether [some or all of] the defendants may
have forfeited the affirmative defense of non-exhaustion by
failing to raise or preserve it ... or whether the defendants'
own actions inhibiting the [prisoner's] exhaustion of remedies
may estop one or more of the defendants from raising the
plaintiff's failure to exhaust as a defense.” Id. (citations
omitted). Third, if the remedies were available and some
of the defendants did not forfeit, and were not estopped
from raising, the non-exhaustion defense, “the Court should
consider whether ‘special circumstances' have been plausibly
alleged that justify the prisoner's failure to comply with the
administrative procedural requirements.” Id. (citations and
internal quotations omitted).
1. Availability of Administrative Remedies
Plaintiff admits (repeatedly) that he filed no written grievance
about his bunk bed. 102 He argues, however, that no written
grievance could have been filed, because a defective bunk bed
is not a grievable matter. In support of this argument, he offers
only conclusory assertions, testimony containing (at best)
inadmissible hearsay, and documents that are completely
immaterial to the fact in question. 103 Defendants, on the
other hand, offer the affidavit of IGRC Supervisor Marilyn
Berlin, who swears, inter alia, that “[c]omplaints about
maintenance issues and cell conditions [such as defective
bunk beds] are proper subjects of grievances.” (Dkt. No.
48, Part 6, ¶ 3 [Berlin Aff.].) As a result, I must reject
Plaintiff's unsupported assertion that a defective bunk bed is
not grievable.
102 (Dkt. No. 37, Part 23 at 58, 61, 63,
65 [Munkowitz Decl., attaching transcript of
Plaintiff's deposition].)
103 (See, e.g., Dkt. No. 42, Part 2 at 13-15 [Plf.'s
Response Mem. of Law, in which Plaintiff appears
to argue-without any citation to evidence-that
he orally complained about his bunk bed to
an unidentified IGRC Supervisor, whom Plaintiff
alleges orally informed him that a defective bunk
bed is not a grievable matter]; Dkt. No. 37, Part 23
at 60, 63, 65 [Munkowitz Decl., attaching transcript
of Plaintiff's deposition, apparently alluding to the
same hearsay remark by the IGRC Superintendent];
Dkt. No. 38, Part 4 at 50, 52, 54, 66 [Plf.'s Motion
for Summary Judgment, attaching, as exhibits,
documents regarding Plaintiff's grievance about the
grounds for his disciplinary conviction and not his
allegedly defective bunk bed].)
This does not end the inquiry, however, because “a remedy
that prison officials prevent a prisoner from utilizing is not an
‘available’ remedy under [the Prison Litigation Reform Act].”
Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001), cited by
Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir.2004) (holding
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that “[t]he defendants' failure to implement the multiple
rulings in [plaintiff's] favor rendered administrative relief
‘unavailable’ under the PLRA.”). More specifically, case law
exists supporting the proposition that, assuming plaintiff was
instructed by prison officials, contrary to prison regulations,
that he could not file a grievance, and plaintiff indeed did
not initiate the grievance process by filing that grievance
in reliance on that misrepresentation, “the formal grievance
proceeding required by [the prison grievance system] was
never ‘available’ to [plaintiff] within the meaning of [the
PLRA].” See Brown v. Croak, 312 F.3d 109, 112-113 (3d
Cir.2002), cited by Giano v. Goord, 380 F.3d 670, 677 n. 6
(2d Cir.2004).
*16 Here, however, I can find absolutely no evidence in
the record before me that IGRC Supervisor Berlin (or any
prison official at Greene C.F.) at any time advised Plaintiff
that a defective bunk bed is not a grievable matter. Again, in
support of his argument that the IGRC made such a remark
to him, Plaintiff offers only vague testimony containing (at
best) inadmissible hearsay, and documents that are immaterial
to the fact in question. 104 Plaintiff's vague and conclusory
argument is made even more incredible in light of IGRC
Supervisor Berlin's sworn statement denying that Plaintiff
ever orally complained to her about his (allegedly) defective
bunk bed, or that she told him that the matter was not
grievable. 105
104 (See, e.g., Dkt. No. 42, Part 2 at 13-15 [Plf.'s
Response Mem. of Law]; Dkt. No. 37, Part 23 at
60, 63, 65 [Munkowitz Decl., attaching transcript
of Plaintiff's deposition]; Dkt. No. 38, Part 4 at 50,
52, 54, 66 [Plf.'s Motion for Summary Judgment,
attaching exhibits regarding a grievance about a
different matter].)
105 (Dkt. No. 48, Part 6, ¶¶ 4-5, 8-11 [Berlin Aff.].)
2. Estoppel
Defendants have preserved their affirmative defense of non-
exhaustion by raising it in their Answer. (Dkt. No. 17, ¶
29 [Defs.' Answer] ) Moreover, no evidence (or even an
argument) exists that any Defendant is estopped from raising
this defense because of his or her actions inhibiting Plaintiff's
exhaustion of remedies; Plaintiff merely argues that a non-
party to this action (the IGRC Supervisor) advised him that
his allegedly defective bunk bed was not a grievable matter.
3. “Special Circumstances” Justifying Failure to Exhaust
Finally, Plaintiff provides no evidence that “special
circumstances” exist justifying his failure to exhaust his
available administrative remedies. Plaintiff alleges that, on
several occasions during the relevant time period, he made
oral complaints about his allegedly defective bunk bed to
various employees of Greene C.F., including Defendants
Woods and Belarge. For the sake of argument, I will
set aside the vagueness of this allegation, its incredibility
given numerous other inconsistencies and improbabilities
in Plaintiff's papers, and its total lack of support by any
corroborating evidence. The problem with Plaintiff's reliance
on this allegation is that, even if it were true, it would not
justify Plaintiff's failure to file a written grievance about his
bunk bed.
Plaintiff was 51 years old at the time of this incident; he
had been incarcerated in several New York State correctional
facilities before the incident; and he had even attended a year
of law school. 106 He admits that, at the time of the incident,
he was familiar with the grievance process at Greene C.F. 107
Indeed, he had filed grievances immediately before and
during this very time period. 108 Simply stated, it would have
been unreasonable for Plaintiff to believe that he could fulfill
the grievance requirement-which included a requirement
that the IGRC's decision be appealed to the Greene C.F.
Superintendent and then to CORC before exhaustion had
occurred-by making some oral complaints to various passers
by, whomever they might be.
106 (Dkt. No. 37, Part 23 at 6-11 [Munkowitz Decl.,
attaching transcript of Plaintiff's deposition]; Dkt.
No. 38, Part 4 at 58 [Plf.'s Motion for Summary
Judgment, attaching medical record showing his
date of birth].)
107 (Dkt. No. 37, Part 23 at 59 [Munkowitz Decl.,
attaching transcript of Plaintiff's deposition].)
108 (Dkt. No. 38, Part 4 at 50 [Plf.'s Motion
for Summary Judgment, attaching Plaintiff's
grievance dated 9/18/02, about the grounds for his
disciplinary conviction]; Dkt. No. 48, Part 7 [Defs.
Reply, attaching grievance dated 8/7/02, about mail
room, and appeal from decision regarding that
grievance].)
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As a result of Plaintiff's failure to exhaust his available
administrative remedies, I recommend that his Eighth
Amendment claim be dismissed.
E. Whether Plaintiff Has Failed to Establish (or Even
State) a Fourteenth Amendment Due Process Claim
*17 In their memorandum of law, Defendants argue that
Plaintiff's due process claim (which is based on the manner
in which his disciplinary hearing was conducted, and which
sought damages only and not injunctive relief) is not
cognizable because a judgment in his favor would necessarily
imply the invalidity of his disciplinary conviction (which
resulted in a loss of good-time credits and thus affected
the overall length of Plaintiff's confinement) and Plaintiff
has not established that that conviction has been reversed,
expunged, or invalidated. (Dkt. No. 37, Part 25 at 10-11
[Defs.' Mem. of Law, citing, inter alia, Heck v. Humphrey,
512 U .S. 477 (1994) and Edwards v. Balisok, 520 U.S.
641 (1997) ].) Liberally construed, Plaintiff's response papers
argue (without any legal support) that, even though Plaintiff's
loss of his good-time credits had not been invalidated on
appeal, for Defendants to obtain summary judgment “they
must prove their innocence beyond a shadow of a reasonable
doubt,” which (he argues) they have not done. (Dkt. No. 42,
Part 2 at 10-13 [Plf.'s Response].)
I reject Plaintiff's argument, and specifically his proffered
legal standard on this motion for summary judgment.
Under the circumstances, Defendants have met their modest
threshold burden with regard to this issue. 109 To avoid
dismissal on summary judgment grounds, Plaintiff must
introduce evidence raising a question of fact as to (1) whether
or not his disciplinary conviction affected the overall length
of Plaintiff's confinement by resulting in a loss of good-
time credits or (2) whether or not his disciplinary conviction
has been reversed, expunged, or invalidated. 110 He has not
done so. Indeed, the evidence shows (and Plaintiff concedes)
that (1) Plaintiff's disciplinary conviction affected the overall
length of Plaintiff's confinement by resulting in a loss of good-
time, and (2) his disciplinary conviction was not reversed,
expunged, or invalidated. 111
109 See Celotex Corp. v. Catrett, 477 U.S. 317, 323-324
(1986); Ciaprazi v. Goord, 02-CV-0915, 2005
WL 3531464, at *8 (N .D.N.Y. Dec. 22, 2005)
(Sharpe, J.) (adopting Report-Recommendation by
Peebles, M.J.) (“[D]efendants' decision to rely ...
upon the lack of evidentiary support for plaintiff's
retaliation claims ... is sufficient to cast the burden
upon the plaintiff to come forward with evidence
demonstrating the existence of genuinely disputed
material issues of fact at trial with regard to those
claims.”) [citations omitted].
110 See Griffin v. Selsky, 326 F.Supp.2d 429,
430 (W.D.N.Y.2004); McNair v. Jones, 01-
CV03253, 2003 U.S. Dist. LEXIS 15825, at *7-8
(S.D.N.Y.2003); Dawes v. Dibiase, 91-CV-0479,
1997 WL 376043, at *7-8 (N.D.N.Y. July 3, 1997)
(McAvoy, J.).
111 (See, e.g., Dkt. No. 5, ¶ 18 [Am. Compl.,
containing sworn allegation that Plaintiff was
sentenced to three months loss of good-time
credits]; Dkt. No. 42, Part 1 [Plf.'s Response to
Belarge Aff., admitting Defendants' assertion that
the discretionary review of Plaintiff's disciplinary
sentence did not affect Plaintiff's loss of good-time
credits]; Dkt. No. 38, Part 4 at 32 [Plf.'s Motion for
Summary judgment, attaching disciplinary hearing
decision, showing sentence imposed]; Dkt. No. 42,
Part 2 at 13 [Plf.'s Response, arguing that “even
though plaintiff's good time was not reversed,
expunged, or declared invalid, that by itself does
not make plaintiff's claims ‘not cognizable’....”].)
As a result, I recommend that Plaintiff's Fourteenth
Amendment due process claim be dismissed.
F. Whether Plaintiff Has Failed to Establish (or Even
State) a Claim for Conspiracy
In their memorandum of law, Defendants argue that Plaintiff
has failed to establish (or even state) a claim for conspiracy
because (1) such a claim falls not under 42 U.S.C. § 1983 but
42 U.S.C. § 1985, which applies specifically to conspiracies,
(2) to succeed on a conspiracy claim under 42 U.S.C. § 1985,
Plaintiff must allege and show “a meeting of the minds,” and
(3) Plaintiff has not alleged and shown such a meeting of
the minds but has offered mere speculative and conclusory
allegations of conspiracy, see, e.g., Dkt. No. 5, ¶¶ 21-22
(Am.Compl.). (Dkt. No. 37, Part 25 at 8-9 [Defs.' Mem. of
Law].) Liberally construed, Plaintiff's response argues that
the evidence does establish such a meeting of the minds
because (1) in their affidavits, Defendants Woods, Antonelli,
and Belarge all swear that they met to plan a strategy
regarding Plaintiff, and (2) that strategy clearly violated
DOCS' policies and procedures, which never involve a group
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of high-ranking officials (such as a deputy superintendent,
captain, and sergeant) meeting to plan a strategy regarding an
inmate, but which involve merely letting a disciplinary charge
be filed and decided by a hearing officer. (Dkt. No. 42, Part
2 at 7-8 [Plf.'s Response].)
*18 I agree with Defendants largely for the reasons stated,
and based upon the cases cited, in their memorandum of
law. (Dkt. No. 37, Part 25 at 8-9 [Defs.' Mem. of Law].)
Plaintiff's attempted conspiracy claim, which is asserted
under 42 U.S.C. § 1983, should actually be asserted under
42 U.S.C. § 1985. See Webb v. Goord, 340 F.3d 105, 110
(2d. Cir.2003) (construing Section 1983 claim styled as
“Conspiracy to Violate Civil Rights” as Section 1985 claim).
To maintain an action under Section 1985, a plaintiff “must
provide some factual basis supporting a meeting of the minds,
such that defendants entered into an agreement, express or
tacit, to achieve the unlawful end.” Webb, 340 F.3d at 110
[internal quotation marks and citations omitted]. Where a
plaintiff does not provide such a factual basis, but only
conclusory, vague or general allegations, such a conspiracy
claim fails. Id. (dismissing conclusory allegation “that any
such meeting of the minds occurred among any or all of
the defendants”); Boddie v. Schneider, 105 F.3d 857, 862
(2d. Cir.1997) (dismissal of “conclusory, vague or general
allegations of conspiracy to deprive a person of constitutional
rights” is proper).
Here, Plaintiff's conspiracy claim is conclusory, vague and
general. It is uncontroverted that, at some point between
August 5, 2002, and August 31, 2002, a meeting took
place between Defendant Woods and Defendant Belarge,
and a meeting took place between Defendant Belarge and
Defendant O'Donnell, and that the purpose of both meetings
was to discuss Plaintiff. (See, supra, Statement of Fact Nos.
25-26.) The issue is whether the purpose of that meeting was
“to achieve an unlawful end” or to simply investigate whether
Plaintiff had violated prison rules.
Defendants offer evidence that the purpose of the meeting
was to lawfully investigate Plaintiff, and Plaintiff has offered
no evidence to the contrary. Plaintiff merely argues that
DOCS' policies and procedures would never involve a group
of high-ranking officials (such as a deputy superintendent,
captain, and sergeant) meeting to discuss a Plaintiff. Even if
Plaintiff had made this assertion in an affidavit or declaration
rather than in a memorandum of law, I would have difficulty
imagining how Plaintiff (despite his legal training and
considerable experience as an inmate) could possibly have
personal knowledge of such a fact. Furthermore, as a matter
of common sense, it seems to me that where (as here) an
inmate has made a mysterious representation to a deputy
superintendent implying that he has possession of a deceased
inmate's legal materials, it would be entirely conceivable
(and appropriate) for the deputy superintendent to initiate an
investigation of the matter, which investigation would involve
lawful meetings with subordinates.
In any event, I need not base my recommendation on
Plaintiff's lack of personal knowledge or on my common
sense: the fact is that Plaintiff has adduced absolutely no
evidence in support of his vague and conclusory allegation
that Defendants Woods, Belarge and O'Donnell entered into
an agreement to achieve an unlawful end. As a result,
I recommend that the Court dismiss Plaintiff's conspiracy
claim.
G. Whether Defendants Are Protected by Qualified
Immunity
*19 In their memorandum of law, Defendants argue that they
are entitled to qualified immunity because they could not have
reasonably known that their conduct was in violation of a
clearly established statutory or constitutional right. (Dkt. No.
37, Part 25 at 17 [Defs.' Mem. of Law].) Liberally construed,
Plaintiff's response argues (without citing any evidence) that,
under the circumstances, any reasonable person would have
reasonably known their conduct was violating Plaintiff's
clearly established constitutional rights. (Dkt. No. 42, Part 2
at 15-17 [Plf.'s Response].)
Again, I must reject Plaintiff's conclusory argument.
“Once qualified immunity is pleaded, plaintiff's complaint
will be dismissed unless defendant's alleged conduct,
when committed, violated ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.’ “ Williams, 781 F .2d at 322 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 815 [1982] ). Regarding the issue
of whether a particular right was clearly established, courts
in this circuit consider three factors:
(1) whether the right in question was
defined with ‘reasonable specificity’;
(2) whether the decisional law of the
Supreme Court and the applicable circuit
court support the existence of the right
in question; and (3) whether under
preexisting law a reasonable defendant
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official would have understood that his or
her acts were unlawful.
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991) (citations
omitted), cert. denied, 503 U.S. 962 (1992). 112 Regarding the
issue of whether a reasonable person would have known he
was violating such a clearly established right, this “objective
reasonableness” 113 test is met if “officers of reasonable
competence could disagree on [the legality of defendant's
actions].” Malley v. Briggs, 475 U.S. 335, 341 (1986); see
also Malsh v. Correctional Officer Austin, 901 F.Supp. 757,
764 (S.D.N.Y.1995) (citing cases); Ramirez v. Holmes, 921
F.Supp. 204, 211 (S.D.N.Y.1996). As the Supreme Court
explained,
112 See also Calhoun v. N.Y.S. Div. of Parole, 999 F.2d
647, 654 (2d Cir.1993); Prue v. City of Syracuse,
26 F.3d 14, 17-18 (2d Cir.1994).
113 See Anderson v. Creighton, 107 S.Ct. 3034,
3038 (1987) ( “[W]hether an official protected
by qualified immunity may be held personally
liable for an allegedly unlawful official action
generally turns on the ‘objective reasonableness
of the action.’ ”) (quoting Harlow, 457 U.S. at
819); Benitez v. Wolff, 985 F.2d 662, 666 (2d
Cir.1993) (qualified immunity protects defendants
“even where the rights were clearly established,
if it was objectively reasonable for defendants to
believe that their acts did not violate those rights”).
[T]he qualified immunity defense ... provides ample
protection to all but the plainly incompetent or those who
knowingly violate the law.... Defendants will not be immune
if, on an objective basis, it is obvious that no reasonably
competent officer would have concluded that a warrant should
issue; but if officers of reasonable competence could disagree
on this issue, immunity should be recognized.
Malley, 475 U.S. at 341. Furthermore, courts in the
Second Circuit recognize that “the use of an ‘objective
reasonableness' standard permits qualified immunity claims
to be decided as a matter of law.” Malsh, 901 F.Supp. at 764
(citing Cartier v. Lussier, 955 F.2d 841, 844 [2d Cir.1992]
[citing Supreme Court cases] ).
Here, based on my liberal construction of all of Plaintiff's
motion papers and response papers, I will assume, for the
sake of argument, that Plaintiff is claiming he had, among
others, the following rights: (1) a right to have Defendant Holt
take control of Inmate Alcivar's legal materials when Plaintiff
offered those materials to Defendant Holt, and to later
acknowledge his failure to take control of those materials;
(2) a right to have Defendant Woods personally visit Plaintiff
in his “cube,” and not launch a disciplinary investigation
against him, following Plaintiff's notes to Defendant Woods;
(3) a right to have Defendants Belarge and O'Donnell
not open or read Plaintiff's correspondence to and from
Inmate Alcivar's two daughters, following Plaintiff's notes to
Defendant Woods; (4) a right to have Defendant Antonelli
recuse himself based on the (alleged) fact that Plaintiff
and Defendant Antonelli, one week before the disciplinary
hearing, had had an “encounter” regarding the conditions of
the equipment in the prison mess hall; and (5) a right to be
either transferred to a new cell in SHU, or provided with
a new bunk bed in SHU, immediately upon making an oral
complaint about his bunk bed to Defendants Woods, Belarge,
O'Donnell, Antonelli and/or Holt (or upon the observations of
that bunk bed by those Defendants).
*20 As an initial matter, it is unclear to me that any of
these rights were “clearly established” in the summer and fall
of 2002 (or are clearly established now). In any event, even
if these rights were clearly established, it appears entirely
reasonable to me for Defendants to have concluded that their
treatment of Plaintiff did not violate these rights (or any
rights). Simply stated, I can find no evidence in the record that
Defendants Holt, Woods, Belarge, O'Donnell or Antonelli
did anything wrong. At the very least, officers of reasonable
competence could have disagreed as to the lawfulness of
Defendants' actions..
As a result, even if the Court does not dismiss all of
Plaintiff's claims for the reasons stated earlier in this Report-
Recommendation, I recommend that the Court dismiss all of
Plaintiff's claims based on qualified immunity.
H. Plaintiff's Motion for Partial Summary Judgment
Based on the above reasons, I find that Plaintiff's motion for
partial summary judgment-which (at best) contains arguments
regarding the issues discussed above-is without merit. I reach
this conclusion for the independent reason that Plaintiff's
Rule 7.1 Statement of Material Facts (Dkt. No. 38, Part 2)
generally does not contain any citations to the record; and, to
the extent that Rule 7.1 Statement does contain citations to
the record, the record generally does not actually support the
facts asserted. See N.D .N.Y. L.R. 7.1(a)(3) ( “Failure of the
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moving party to submit an accurate and complete Statement
of Material Facts shall result in a denial of the motion.”)
[emphasis in original].
As a result, I recommend the denial of Plaintiff's motion for
partial summary judgment.
ACCORDINGLY, it is
RECOMMENDED that Defendants' motion for summary
judgment (Dkt. No. 37) be GRANTED; and it is further
RECOMMENDED that Plaintiff's motion for partial
summary judgment (Dkt. No. 38) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have ten days within which to file written objections
to the foregoing report. Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN TEN DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,
89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human
Svcs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b);
Fed.R.Civ.P. 6(a), 6(e), 72.
All Citations
Not Reported in F.Supp.2d, 2006 WL 1133247
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Smith v. Woods
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (5)
Title PDF Court Date Type
1. Brief for Defendants-Appellees
Jeff SMITH, Plaintiff-Appellant, v. Robert K. WOODS,
Defendants-Appellees.
2006 WL 5101312
C.A.2 Oct. 23, 2006 Brief
2. Notice of Motion
Jeff SMITH, Plaintiff, v. Robert K. WOODS, DepUty
Superintendent; Joseph R. Belarge, Captain; G. J.
O'Donnell, Sergeant; F.S.A. Antonelli; Wayne Holt, Officer,
Defendants.
2004 WL 5538138
N.D.N.Y. June 30, 2004 Motion
3. Counter-Statement Pursuant to Rule 7.1(a)(3)
Jeff SMITH, Plaintiff, v. Robert K. WOODS, Deputy
Superintendent; Joseph R. Belarge, Captain; G.J.
O'Donnell, Sergeant; F.S.A. Antonelli; Wayne Holt,
Correction Officer, Defendants.
2005 WL 6063077
N.D.N.Y. Apr. 01, 2005 Filing
4. Docket 07-8792
JEFF SMITH v. ROBERT K. WOODS
— U.S. Jan. 17, 2008 Docket
5. Docket 06-2370
SMITH v. WOODS
— C.A.2 May 16, 2006 Docket
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Smith v. Woods
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (3)
1. Smith v. Woods
2006 WL 1133247 , N.D.N.Y. , Apr. 24, 2006
Judgment Affirmed by
2. Smith v. Woods
219 Fed.Appx. 110 , 2nd Cir.(N.Y.) , Mar. 12, 2007
Certiorari Denied by
3. Smith v. Woods
552 U.S. 1248 , U.S. , Mar. 03, 2008
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Livingston v. Hoffnagle, Not Reported in Fed. Supp. (2019)
2019 WL 7500501
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 7500501
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Richard H. LIVINGSTON, Plaintiff,
v.
William HOFFNAGLE, et al., Defendants.
No. 9:19-CV-0353 (GLS/CFH)
|
Signed 11/08/2019
Attorneys and Law Firms
Richard H. Livingston, 326 N. Beech Street, Syracuse, New
York 13207, Plaintiff pro se.
OF COUNSEL: CHRISTOPHER J. HUMMEL, ESQ. 1 ,
Assistant Attorney General, Attorney General for the State of
New York, The Capitol, Albany, New York 12224, Attorney
for Defendants.
1 The undersigned bears no relation to counsel for
defendants.
REPORT-RECOMMENDATION AND ORDER 2
2 This matter was referred to the undersigned for
Report-Recommendation and Order pursuant to 28
U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE
*1 Plaintiff pro se Richard H. Livingston (“Plaintiff”), an
inmate who was, at all relevant times, in the custody of the
New York State Department of Corrections and Community
Supervision (“DOCCS”), brings this action pursuant to 42
U.S.C. § 1983, alleging that defendants Correctional Sergeant
(“Sgt.”) William Hoffnagle, Correction Officer (“C.O.”)
Dustin Hollenbeck, and C.O. Chris King—who, at all
relevant times were employed at Upstate Correctional Facility
(“Upstate”)—violated his constitutional rights under the First
and Eight Amendments. See Dkt. No. 1 (“Compl.”). 3
3 Following initial review of plaintiff's complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B), Senior
District Judge Gary L. Sharpe dismissed certain
claims with and without prejudice. See Dkt.
No. 4. The Court dismissed plaintiff's Fourteenth
Amendment Due Process and Equal Protection
Claims. See Dkt. Nos. 1, 4. Further, Judge Sharpe's
Decision and Order dismissed plaintiff's claims
insofar as plaintiff sought monetary damages
against defendants in their official capacity
pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915(A) as barred by the Eleventh Amendment.
See Dkt. No. 4 at 8.
Presently pending before the Court is defendants’ motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure (“Fed. R. Civ. P.”). See Dkt. No. 12. Plaintiff
did not file a response. 4 For the reasons that follow, it is
recommended that defendants’ motion be granted in part and
denied in part.
4 In lieu of filing a response, plaintiff submitted
a letter stating that he relied “solely” on a
previous report and recommendation in a separate
case arising out of largely the same facts
and circumstances as alleged herein in which
Magistrate Judge Peebles recommended granting
defendants’ motion to dismiss plaintiff's prior
complaint on the basis that plaintiff failed to
exhaust administrative remedies, but “note[d] that
‘the outcome could very well have been different if
plaintiff had, in fact, permitted the thirty-day period
to elapse prior to commencing [that] suit.” Dkt. No.
14 (quoting Livingston v Hoffnagle et al., 9:17-
CV-1158 (MAD/DEP), Dkt. No. 28 at 18 n.11).
I. Background
A. Plaintiff's Recitation of the Facts
The facts are related herein in the light most favorable to
plaintiff as the non-moving party. See section II.A. infra. At
all times relevant to this complaint, plaintiff was incarcerated
at Great Meadow Correctional Facility (“Great Meadow”).
See generally Compl. On August 1, 2017, plaintiff was
transferred from Clinton Correctional Facility (“Clinton”) to
Upstate, 5 where he was to be housed in solitary confinement
for six months as a result of his involvement in an altercation
with another inmate at Clinton. See Compl. at 5 ¶ 8; Dkt. No.
1-1 at 2. Upon his arrival to Upstate, plaintiff requested that
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Sgt. Hoffnagle, the area supervisor, place him in protective
custody because “he was in fear for his life and safety” as
a result of the prior altercation, which he characterized as a
“gang attack.” Compl. at 5 ¶ 8. According to plaintiff, the
inmate with whom he had engaged in an altercation at Clinton
was a gang member and had initiated the fight with plaintiff.
See id. However, plaintiff “had gotten the best of” him,
which plaintiff believed became widely known throughout
DOCCS. Id. Therefore, plaintiff asserts, he was worried that
a gang member at Upstate would retaliate against him. See id.
Plaintiff alleges that, in response to his request for protective
custody, Sgt. Hoffnagle directed his two subordinates, C.O.
Hollenbeck and C.O. King, “to dissuade” plaintiff from
requesting protective custody. Id. at 12 ¶ 45.
5 Upstate is a maximum security prison comprised
exclusively of special housing unit (“SHU”) cells
in which inmates are confined for twenty-three
hours each day, primarily for disciplinary reasons.
Samuels v. Selsky, No. 01-CV-8235 (AGS), 2002
WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12,
2002).
*2 Plaintiff states that defendants “tortured” him by locking
him in a holding cell, “chained and handcuffed tightly,” with
no food, water, or bathroom access between 1:00 P.M. and
6:30 P.M. Id. at 9 ¶ 39, 5 ¶ 12. He asked defendants “over
10 times” to loosen his chains and handcuffs, for water, and
to use the bathroom “for relief,” but defendants ignored his
requests. Id. at 6 ¶ 13, 10 ¶ 40. Between 5:30 P.M. and 6:30
P.M., plaintiff “threaten[ed] to file grievances and lawsuits”
against defendants based on “constitutional violations.” Id. at
6 ¶ 15. In response, C.O. King told plaintiff that “the Sgt.
wants to write plaintiff a ticket” and that “he was instructed
to write a misbehavior report” based on plaintiff's “refus[al]
of a direct order to lock into a cell,” which plaintiff denies,
stating that “this was not the case.” Id. at 6 ¶¶ 17, 18.
Sometime between 6:00 p.m. and 6:30 p.m., plaintiff was
placed in a cell with a “violent gang banger,” purportedly in
contravention of DOCCS Directive No. 4003B, and given a
tray of food that was “freezer cold.” Id. at 6 ¶ 20. Plaintiff
states that he was housed with this inmate as “punishment”
for requesting protective custody. Id. at 6 ¶ 20, 7 ¶ 22. Plaintiff
alleges that being housed with this “gang member” caused
him “psychological pain” and loss of “sleep for days in fear
of his life.” Id. at 11 ¶ 43.
On August 3 and August 7, 2017, plaintiff filed two nearly
identical grievances concerning the events that occurred
on August 1, 2017. See id. at 7; Dkt. No. 1-1 at 4, 5.
On September 25, 2017, plaintiff's grievance was denied.
See Dkt. No. 1-1 at 10-11. Plaintiff appealed the denial to
Central Office Review Committee (CORC). See id. at 12.
On December 12, 2018, CORC denied plaintiff's appeal as
without merit. See id. at 16.
II. Discussion 6
6 All unpublished opinions cited in this Report-
Recommendation and Order, unless otherwise
noted, have been provided to plaintiff.
A. Legal Standard for Motions
Pursuant to Fed. R. Civ. P. 12(b)(6)
Under Fed. R. Civ. P. 12(b)(6), a defendant may move
to dismiss a complaint for a plaintiff's “failure to state a
claim upon which relief can be granted.” When considering
such a motion, a court must “construe plaintiff[’s] complaint
liberally, accepting all factual allegations in the complaint
as true, and drawing all reasonable inferences in plaintiff[’s]
favor.” Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d
Cir. 2009) (quoting Holmes v. Grubman, 568 F.3d 329, 335
(2d Cir. 2009)) (internal quotation marks omitted). However,
this “tenet is inapplicable to legal conclusions, and threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 664 (2009)) (internal quotation marks and alterations
omitted).
Accordingly, to survive a motion to dismiss, a complaint must
state a claim for relief that is “ ‘plausible on its face.’ ” Iqbal,
556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007) (explaining that the plausibility
test “does not impose a probability requirement ... it simply
calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence of illegal [conduct].”)); see
also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009)
(holding that “[o]n a motion to dismiss, courts require enough
facts to state a claim to relief that is plausible....”) (internal
quotation marks and citation omitted). Determining whether
plausibility exists is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
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Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Treistman v Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit stated,
[t]here are many cases in which we
have said that a pro se litigant is
entitled to special solicitude, that a
pro se litigant's submissions must
be construed liberally, and that such
submissions must be read to raise the
strongest arguments that they suggest.
At the same time, our cases have
also indicated that we cannot read
into pro se submissions claims that
are not consistent with the pro se
litigant's allegations, or arguments that
the submissions themselves do not
suggest, that we should not excuse
frivolous or vexatious filings by pro
se litigants, and that pro se status does
not exempt a party from compliance
with relevant rules of procedural and
substantive law....
*3 Id. (internal quotation marks, citations, and footnote
omitted); see also Sealed Plaintiff v Sealed Defendant #1, 537
F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous
to count, we have reminded district courts that when [a]
plaintiff proceeds pro se, ... a court is obligated to construe his
pleadings liberally.”) (internal quotation marks and citations
omitted).
B. Eighth Amendment
Inmates enjoy an Eighth Amendment protection against the
use of excessive force and may recover damages for its
violation under § 1983. Hudson v. McMillian, 503 U.S. 1,
9-10 (1992). The Eighth Amendment's prohibition against
cruel and unusual punishment precludes the “unnecessary and
wanton infliction of pain.” Sims v. Artuz, 230 F.3d 14, 20
(2d Cir. 2000) (quoting Gregg v. Georgia, 428 U.S. 153, 173
(1976)).
1. Excessive Force
Plaintiff alleges that defendants used excessive force in
violation of his Eighth Amendment rights by applying his
chains and handcuffs too tightly. Compl. at 10 ¶¶ 12, 41.
Plaintiff states that the tightness of the chains and handcuffs
caused “soreness.” Id. at 10 ¶ 41. He further contends that
he “asked over 10 times” for his handcuffs and chains to be
loosened and “continued to complain about the tightness and
soreness for [six] hours,” but defendants refused to loosen
the chains and handcuffs. See id. at 6 ¶ 14. He alleges that
the chains and handcuffs were applied tightly in order to
make him “break[ ] down and forget about wanting protective
custody.” Compl. at 9 ¶ 37. Defendants argue that plaintiff has
failed to state a claim for excessive force because plaintiff's
alleged injury is de minimis for constitutional purposes. See
Dkt. No. 12-1 at 5.
Claims that prison officials applied restraints too tightly
are analyzed under the Eighth Amendment as claims of
excessive force. See Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir.
1994). To bring a claim of excessive force under the Eighth
Amendment, a plaintiff must establish both objective and
subjective elements. See Blyden v. Mancusi, 186 F.3d 252,
262 (2d Cir. 1999). The objective element is “responsive to
contemporary standards of decency” and requires a showing
“that the injury actually inflicted [is] sufficiently serious
to warrant Eighth Amendment protection.” Hudson, 503
U.S. at 8 (internal quotation marks and citation omitted);
Blyden, 186 F.3d at 262. “Not every push or shove, even
if it may later seem unnecessary in the peace of a judge's
chambers, violates a prisoner's constitutional rights.” Sims,
230 F.3d at 22 (internal quotation marks, alteration, and
citation omitted). However, “the malicious use of force to
cause harm[ ] constitute[s] [an] Eighth Amendment violation
per se” regardless of the seriousness of the injuries. Blyden,
186 F.3d at 263 (citing Hudson, 503 U.S. at 9). “The Eighth
Amendment's prohibition of cruel and unusual punishments
necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force
is not of a sort repugnant to the conscience of mankind.”
Hudson, 503 U.S. at 9-10 (internal quotation marks and
citations omitted). “The absence of serious injury is therefore
relevant to the Eighth Amendment inquiry, but does not end
it.” Id. at 7.
The subjective element requires a plaintiff to demonstrate
the “necessary level of culpability, shown by actions
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characterized by wantonness.” Sims, 230 F.3d at 21 (internal
quotation marks and citations omitted). Thus, the key inquiry
into a claim of excessive force is “whether force was applied
in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically [to] cause[ ] harm.” Hudson, 503
U.S. at 7 (internal quotation marks and citations omitted);
see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per
curiam) (Observing that the Supreme Court has emphasized
that the nature of the force applied is the “core judicial
inquiry” in excessive force cases—“not whether a certain
quantum of injury was sustained.”) (internal quotation marks
and citation omitted). In determining whether defendants
acted in a malicious or wanton manner, the Second Circuit has
identified five factors to consider:
*4 the extent of the injury and the
mental state of the defendant[;] ...
the need for the application of force;
the correlation between that need
and the amount of force used; the
threat reasonably perceived by the
defendants; and any efforts made by
the defendants to temper the severity
of a forceful response
Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (internal
quotation marks and citations omitted).
“While handcuffs must be reasonably tight to be effective,
overly tight handcuffing may constitute excessive force.”
Burroughs v Petrone, 138 F. Supp. 3d 182, 213 (N.D.N.Y.
2015) (internal quotation marks and citation omitted). For
example, in Davidson, the plaintiff alleged that correction
officers “placed ... handcuffs and leg irons and waist chain on
[him] so tight as to cut into [his] flesh[,] reduce circulation[,]
and cause swelling,” which left a scar on his right ankle and
numbness in the area, and caused his “wrists [to be] numb for
several months afterwards.” Davidson, 32 F.3d at 29. Further,
the plaintiff alleged that the defendants purposefully placed
the handcuffs and chains too tightly in retaliation for filing
lawsuits, and that they refused his requests to loosen the
restraints. See id. at 29, 30. The Second Circuit concluded that
the plaintiff's complaint in Davidson
plainly allege[d] both the objective
and subjective components of a
cause of action for an Eighth
Amendment violation: the handcuffs
were allegedly placed on the plaintiff
too tightly, leading to serious
and permanent physical injury (the
objective component), and such
excessive force was applied to the
plaintiff wantonly and maliciously in
retaliation for being a litigious inmate
(the subjective component).
Id. at 30 (internal quotation marks and brackets omitted).
By contrast, courts routinely dismiss claims of excessive force
based on tight handcuffing where an inmate asserts only a de
minimis injury without plausible allegations of wantonness
or maliciousness. 7 For instance, in Burroughs v. Mitchell,
the Court dismissed a pro se inmate's excessive force claim
where he alleged only that the defendants “handcuffed him
tightly, which caused cuts to his wrist.” Burroughs v. Mitchell,
325 F. Supp.3d 249, 265 (N.D.N.Y. 2018) (internal quotation
marks omitted). Similarly, in Burroughs v. Petrone, the Court
dismissed the pro se inmate's excessive force claim based on
tight handcuffing where the complaint alleged, without more,
that the handcuffs caused “pain, swelling, and bruising.”
Burroughs v. Petrone, 138 F. Supp. 3d 182, 213 (N.D.N.Y.
2015) (internal quotation marks and brackets omitted).
7 As defendants observe, some relevant caselaw
appears to suggest that, in order to state an Eighth
Amendment excessive force claim based on tight
restraints, a plaintiff must allege a permanent
injury. See Dkt. No. 12-1 (citing, among other
cases, Burroughs v. Petrone, 138. F. Supp. 3d
182, 213 (N.D.N.Y. 2015) (“In the absence of any
facts alleging any permanent injury as a result
of handcuffing, plaintiff's excessive force claims
against Weeks, S. King, Melendez, and McKeown
fail to state a cause of action under § 1983.”)).
However, many of those cases assess excessive
force claims under the Fourth Amendment. See
Bourdon v. Roney, No. 9:99-CV-0769 (LEK/
GLS), 2012 WL 21058177, at * 9-10 (N.D.N.Y.
Mar. 6, 2003) (assessing an arestee's Fourth
Amendment excessive force claim arising out of
events that occurred during the course of the
plaintiff's arrest); Jackson v. City of New York,
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939 F. Supp. 2d 219, 231 (E.D.N.Y. 2013) (same);
Lynch ex rel. Lynch v. City of Mount Vernon, 567
F. Supp. 2d 459, 468–69 (S.D.N.Y. 2008) (same);
Layou v. Crews, No. 9:11-CV-0114 (LEK/RFT),
2013 WL 5494062, at *7 (N.D.N.Y. Sept. 30, 2013)
(same). It is well settled that Fourth Amendment
excessive force claims are assessed under the
objective reasonableness standard, which does
not apply to post-conviction inmates and, unlike
the Eighth Amendment standard that includes
both objective and subjective elements, is an
“exclusively objective analysis” under which the
defendant's “intent is irrelevant.” Franks v. New
Rochelle Police Dep't, No. 13-CV-636 (ER), 2015
WL 4922906, at *10 (S.D.N.Y. Aug. 18, 2015).
Further, the complaint in the Eighth Amendment
excessive force case relied on by defendants,
which cites to cases assessing Fourth Amendment
excessive force claims, lacked allegations of
wantonness, which allowed the court to bypass
the subjective analysis and dismiss the Eighth
Amendment excessive force claim on the objective
prong alone. See Petron, 138 F. Supp. 3d at
213 (dismissing the plaintiff's Eighth Amendment
excessive force claim where the complaint was
devoid of allegations of malicious force and alleged
only a de minimis injury). As discussed in section
II.B.1., “[t]he appropriate test” for assessing an
excessive force claim brought “under the Eighth
Amendment involves both subjective and objective
elements.” Blyden v. Mancusi, 186 F.3d 252,
262 (2d Cir. 1999). Accordingly, this Report-
Recommendation & Order will apply the test
articulated in Blyden.
*5 Further, where a pro se inmate's complaint alleged that
overly tight handcuffing caused “pain in his wrists and pain,
numbness[,] and swelling in his foot and ankle,” the court
concluded that the alleged injuries were “more than likely
to prove de minimis.” Warren v. Purcell, No. 03-CV-8736
(GEL), 2004 WL 1970642, at *8 (S.D.N.Y. Sept. 3, 2004).
However, the court in Warren declined to determine whether
such injuries were sufficiently serious for purposes of the
Eighth Amendment because it concluded that the complaint
failed to satisfy the subjective element, reasoning that the
complaint did not “attribute[ ] any improper or retaliatory
motive to the defendant officers, either in attaching the cuffs
in ... the first instance, or in failing to loosen them once he
complained.” Id.
Moreover, in Wilson v. Woodbourne Corr. Facility, the pro
se inmate alleged only that the defendants used excessive
force by applying “handcuffs ... too tightly when escorting
[him].” Wilson v. Woodbourne Corr. Facility, No. 9:11-
CV-1088 (DNH/ATB), 2012 WL 1377615, at *4 (N.D.N.Y.
Mar. 21, 2012), report and recommendation adopted sub nom.
Wilson v. Depolo, No. 9:11-CV-1088, 2012 WL 1366590
(N.D.N.Y. Apr. 19, 2012). Noting the absence of any facts in
the complaint alleging that the defendant correction officers
were aware that the restrains were causing pain or that the
plaintiff requested the restraints to be loosened, the Court
concluded that the “[p]laintiff's allegation, without more, ...
[wa]s clearly de minimis, and ... certainly not repugnant to
the conscience of mankind.” Id. (internal quotation marks
omitted).
Here, the undersigned finds that plaintiff has sufficiently
pleaded a per se claim for excessive force because he has
alleged facts which plausibly suggest that the force asserted
was done maliciously for the purpose of causing harm. See
Hudson, 503 U.S. at 9-10. Although, as defendants correctly
contend, plaintiff's alleged injury resulting from the “tight”
handcuffs and chain—“soreness”—is de minimis, Compl.
at 10 ¶¶ 12, 41; see Warren, 2004 WL 1970642, at *8
(holding that temporary pain, numbness and swelling as a
result of tight handcuffing was “more than likely to prove
de minimis”); Ruggiero v Fisher, No. 15-CV-00962 (RJA/
JJM), 2018 WL 7892966, at *7 (W.D.N.Y. Sept. 27, 2018),
report and recommendation adopted sub nom. Ruggiero v.
Fisher, No. 15-CV-962-A, 2019 WL 1438810 (W.D.N.Y. Apr.
1, 2019 (temporary discomfort resulting from tight restraints
held to be de minimis), “[t]he absence of serious injury [while]
relevant to the Eighth Amendment inquiry, ... does not end
it.” Hudson, 503 U.S. at 7.
Plaintiff alleges that he asked defendants to “loosen the
chains and [handcuffs] over ... 10 times,” “complain[ed] about
the tightness and soreness for [six] hours,” that defendants
ignored his “constant pleas and cries to loosen the chains
and [hand]cuffs” and tightly chained and handcuffed him in
order to make him “break[ ] down and forget about wanting
protective custody.” Compl. at 6 ¶ 13, 9 ¶ 37. Based on
these allegations, the undersigned finds that the complaint
sufficiently pleads facts plausibly suggesting that the use
of force was malicious and done for the purpose to cause
harm. See Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999)
(“[T]he malicious use of force to cause harm constitutes
an ‘Eighth Amendment violation per se ... whether or not
significant injury is evident.’ ”) (quoting Blyden, 186 F.3d at
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263) (alteration omitted)). Thus, although plaintiff does not
allege that he suffered any significant or permanent injury as
a result of the tight handcuffs and chains, “any or even ...
no injuries resulting from the events plaintiff described could
amount to a per se constitutional violation.” Brown v. Dubois,
No. 9:15-CV-1515 (LEK/CFH), 2017 WL 2983305, at *9
(N.D.N.Y. June 16, 2017) (citing Baskerville v. Mulvaney,
411 F.3d 45, 48-49 (2d Cir. 2005)); Cf. Warren, 2004 WL
1970642, at *8 (officers who placed prisoner in tight restraints
did not violate constitution where prisoner suffered temporary
pain, numbness, and swelling, and no improper or wanton
motive was alleged for the officers’ actions).
*6 Accordingly, it is recommended that defendants’ motion
to dismiss on this ground be denied.
2. Failure to Protect
Plaintiff next alleges that defendants failed to protect him
in violation of his Eighth Amendment rights by placing him
in a holding cell with a “violent gang member” despite his
numerous requests to be placed in protective custody. Compl.
at 11 ¶ 42. He further alleges that as a result of being housed
with this other inmate, he was unable “to sleep for days in
fear of his life” and experienced “psychological pain.” Id. at
11 ¶ 43. Defendants argue that plaintiff's claim fails to state
a cause of action for failure to protect because plaintiff “does
not allege that the inmate he was housed with assaulted him[ ]
or caused any other injury whatsoever.” Dkt. No. 12-1 at 6.
“The Eighth Amendment requires prison officials to take
‘reasonable measures to guarantee the safety of inmates’ in
their custody.” Hayes v. New York City Dep't of Corr., 84
F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan,
511 U.S. 825, 832-33 (1994)). “[A] state prison guard's
deliberate indifference to the consequences of his conduct
for those under his control and dependent upon him may
support a claim under § 1983.” Morales v. New York
State Dep't of Corr., 842 F.2d 27, 30 (2d Cir. 1988).
To state a claim for failure to protect under the Eighth
Amendment, a plaintiff must demonstrate that (1) he or she
was “incarcerated under conditions posing a substantial risk
of serious harm” (objective prong); and (2) prison officials
acted with deliberate indifference to that risk and the inmate's
safety (subjective prong). Farmer, 511 U.S. at 834.
As to the objective prong, the deprivation must be
“sufficiently serious,” Hathaway v. Coughlin, 37 F.3d 63,
66 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S.
294, 298 (1991) (internal quotation marks omitted)), and
“contemplate[ ] ‘a condition of urgency, one that may produce
death, degeneration, or extreme pain.’ ” Id. (quoting Nance v.
Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting)).
“A substantial risk of serious harm can be demonstrated
where there is evidence of a previous altercation between
a plaintiff and an attacker, coupled with a complaint by
plaintiff regarding the altercation or a request by plaintiff to
be separated from the attacker.” Gilmore v. Rivera, No. 13-
CV-6955 (RWS), 2014 WL 1998227, at *3 (S.D.N.Y. May 14,
2014); see Rivers v. Spinnella, No. 9:09-CV-309 (FJS/RFT),
2010 WL 6428486, at *5 (N.D.N.Y. Nov. 4, 2010) (granting
the defendants’ motion for summary judgment where “there
[were] no specific facts, nor even allegations, that indicate
the [the d]efendant was aware that [the p]laintiff faced a
substantial risk of serious harm until the altercation had
already started.”).
As to the subjective prong, the plaintiff must demonstrate
that prison officials actually knew of and disregarded an
excessive risk of harm to the inmate's health and safety.
See Farmer, 511 U.S. at 837. The defendant “must both be
aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. The plaintiff must “show that
the defendants actually inferred from that disclosure that a
substantial risk of serious harm existed.” Murray v. Goord,
668 F. Supp. 2d 344, 359 (N.D.N.Y. 2009). Negligence by
a prison official is insufficient to amount to a constitutional
violation. See Hathaway, 37 F.3d at 66.
*7 As to the objective prong, plaintiff does not allege facts
plausibly suggesting that he faced a substantial risk of serious
harm from his cellmate. As urged by defendants, plaintiff
does not claim that the inmate with whom he was housed
on August 1, 2017, threatened or assaulted him in any way.
Rather, plaintiff alleges only that he could not sleep for some
uncertain amount of time and that he experienced unspecified
“psychological pain” as a result of being housed with this
inmate. Compl. at 11 ¶ 43. Such conclusory and speculative
fears certainly do not “ ‘contemplate[ ] ‘a condition of
urgency, ... that may produce death, degeneration, or extreme
pain.’ ” Hathaway, 37 F.3d at 66 (quoting Nance, 912 F.2d
at 607). Further, given the absence of allegations of actual
physical injury, plaintiff has failed to satisfy the objective
element of the test. See Dzwonczyk v. Syracuse City Police
Dep't, 710 F. Supp. 2d 248, 267 (N.D.N.Y. 2008) (“where,
as here, the plaintiff does not allege that he was assaulted or
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threatened by other inmates, or where plaintiff only alleges
that he was in fear of an assault, a claim for failure to
protect must be dismissed”); Johnson v. Lynn-Caron, No.
9:11-CV-386 (GLS/CFH), 2013 WL 5465594, *5 (N.D.N.Y.
Sept. 30, 2013) (dismissing the plaintiff's failure to protect
claim where the plaintiff did not demonstrate actual physical
harm); Jamison v. Hayden, No. 9:03-CV9-13 (FJS/DRH),
2008 WL 907316, at *3 (N.D.N.Y. Mar. 31, 2008) (dismissing
an inmate's failure to protect claim where the only injury
alleged was “severe stress” in the absence of allegations of
actual physical injury); Dolberry v. Levine, 567 F. Supp. 2d
413, 418 (W.D.N.Y. 2008) (dismissing a failure to protect
claim where the plaintiff failed to proffer evidence showing
he was subjected to any physical harm); see also Garcia v.
Rodriguez, No. 05-CV-5915 (JSR), 2007 WL 2456631, at *2
(S.D.N.Y. Aug. 24, 2007) (holding that even an isolated threat
from one inmate to another that an inmate would “get hurt,”
without any other present or past violent indications between
the two inmates, does not demonstrate a substantial risk of
serious harm).
As to the subjective prong, plaintiff fails to contend that
defendants actually knew of and disregarded an excessive risk
to his safety. Although plaintiff alleges that he explained to
defendants “his reason for requesting [protective custody]”—
that he had a general fear of retaliation for the altercation at
Clinton—the complaint is devoid of any factual allegations
that he informed defendants that the particular inmate with
whom he was housed at Upstate had a connection to the
inmate involved in the altercation at Clinton, knew of
that incident, posed any specific risk to his safety as a
result thereof, or engaged in any threatening or assaultive
behavior toward plaintiff. Compl. at 11 ¶ 42. Therefore, the
complaint fails to allege sufficient factual allegations that
defendants could have “actually inferred from that disclosure
that a substantial risk of serious harm existed” as a result
of plaintiff's placement with his cellmate. Murray, 668 F.
Supp. 2d at 359. Indeed, it is well settled that a defendant's
knowledge of a plaintiff's generalized fear of harm is an
insufficient basis upon which to establish a failure to protect
claim. See Burns v. Martuscello, No. 9:13-CV-0486 (LEK/
CFH), 2015 WL 541293, at *13 (N.D.N.Y. Feb. 10, 2015)
(internal quotation marks omitted) (“Eighth Amendment
failure to protect claims are not to be based on a defendant's
knowledge of a general risk of harm to an inmate.”) (internal
quotation marks omitted); see also Hogan v. Fischer, No. 09-
CV-6225, 2012 WL 4845609, at *6 (W.D.N.Y. Oct. 10, 2012)
(holding the failure to protect the plaintiff against a general
threat of harm is insufficient to raise a failure to protect
claim under the Eighth Amendment), vacated in part on other
grounds, 738 F.3d 509 (2d Cir. 2013). Thus, the complaint
does not sufficiently state a claim for failure to protect against
defendants. 8
8 In addition, to the extent that plaintiff also contends
that defendants violated DOCCS Directive 4003B
by housing him with the alleged gang member, it
is well settled that “[f]ailure to follow a DOCCS
Directive does not give rise to a § 1983 claim.”
Alicea v. Maly, No. 9:12-CV-203 (MAD/TWD),
2015 WL 4326114, at *14 n.8 (N.D.N.Y. July
14, 2015); see Cabassa v. Gummerson, No. 9:01-
CV-1039 (DNH/GHL), 2008 WL 4416411, at *6
n.24 (N.D.N.Y. Sept. 24, 2008) (violation of a
DOCCS Directive does not give the plaintiff a
claim under 42 U.S.C. § 1983); see also Ahlers
v. Nowicki, No. 9:12-CV-0539 (DNH/RFT), 2014
WL 1056935, at *4 (N.D.N.Y. Mar. 18, 2014)
(“[C]laims involving the improper adherence to
proprietary facility policies are incognizable under
§ 1983; only rights secured by the Constitution and
federal law are actionable under § 1983.”).
*8 Accordingly, it is recommended that plaintiff's failure to
protect claim be dismissed.
3. Conditions of Confinement
Reading plaintiff's allegations to raise the strongest arguments
they suggest, the complaint alleges that defendants subjected
him to unconstitutional conditions of confinement in violation
of his Eighth Amendment rights by placing him in a holding
cell for a maximum period of five and one-half hours, during
which time he was handcuffed, denied access to a bathroom,
deprived of food and water, and housed with a “violent gang
member.” Compl. at 10 ¶ 40, 11 ¶ 43. Defendants argue that
the alleged conditions of plaintiff's confinement do not rise
to the level of an Eighth Amendment violation. See Dkt. No.
12-1 at 4-6.
“The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones, and it is now settled that
the treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under
the Eighth Amendment.” Farmer, 511 U.S. at 832 (internal
quotation marks and citations omitted); see Blyden, 186 F.3d
at 263 (“society does not expect or intend prison conditions
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to be comfortable, [and] only extreme deprivations” of basic
human needs “are sufficient to sustain a [conditions of
confinement] claim.”) (internal quotation marks omitted). As
with other Eighth Amendment claims, a “plaintiff must satisfy
both an objective ... and subjective test.” Jolly v. Coughlin, 76
F.3d 468, 480 (2d Cir. 1996) (citations omitted). Objectively,
the deprivation must be “sufficiently serious [such] that
[the inmate] was denied the minimal civilized measure of
life's necessities.” Walker v. Schult, 717 F.3d 119, 125 (2d
Cir. 2013) (internal quotation marks and citation omitted).
The objective prong can be satisfied where the plaintiff
pleads “conditions [that] either alone or in combination, pose
an unreasonable risk of serious damage to [the inmate's]
health.” Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017)
(quoting Walker, 717 F.3d at 125). There is no “static test” to
determine whether or not an alleged deprivation is sufficiently
serious to satisfy the objective prong. Id. (internal quotation
marks omitted). Rather, courts must determine whether the
conditions violate “contemporary standards of decency.” Id.
(quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995))
(additional citation omitted). To satisfy the subjective test,
the inmate must show that “the defendant official acted with
a sufficiently culpable state of mind ... such as deliberate
indifference to [the inmate's] health or safety.” Id. (internal
quotation marks and citation omitted); see also Phelps v.
Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002).
Unconstitutional conditions of confinement have generally
been found when the duration of the deprivation is sufficiently
long, or when the deprivation is an ongoing condition of
an inmate's confinement, rather than the result of a single,
isolated incident. See Hutto v. Finney, 437 U.S. 678, 686-87
(1978) (“A filthy, overcrowded cell and a diet of grue might
be tolerable for a few days and intolerably cruel for weeks
or months.”) (internal quotation marks omitted); Smith v.
Copeland, 87 F.3d 265, 269 (8th Cir. 1996) (“[T]he length of
time a prisoner is subjected to harsh conditions is a critical
factor in [an Eighth Amendment] analysis. Conditions such as
a filthy cell that may be tolerable for a few days are intolerably
cruel for weeks or months.” (citations omitted)); Walker v.
Schriro, No. 11-CV-9299 (JPO), 2013 WL 1234930, at *13
(S.D.N.Y. 2013) (allegations that the plaintiff was temporarily
deprived of food, shower, linens, running water or bathroom
were insufficient to state a claim “[g]iven that none of
the[ ] deprivations rose to an acute and conscience-shocking
level, either alone or in combination, the relative brevity of
the [p]laintiff's mistreatment precludes a finding that [the
p]laintiff can satisfy the requirement of an objectively serious
deprivation”).
i. Handcuffing/Denial of Bathroom Access
*9 “Individuals in custody do not have a constitutional
right to use the bathroom ... whenever they please.” Treat
v. Cent. New York Psychiatric Ctr., No. 9:12-CV-602, 2013
WL 6169746, at *2 (N.D.N.Y. Nov. 20, 2013). It is well
settled held that “[t]he temporary deprivation of the right to
use the toilet, in the absence of serious physical harm or
a serious risk of contamination, does not rise to the level
of an Eighth Amendment violation.” Whitted v. Lazerson,
No. 96-CV-2746 (AGS), 1998 WL 259929, at *2 (S.D.N.Y.
May 21, 1998); see Odom v. Keane, No. 95-CV-9941
(SS), 1997 WL 576088, at *4-5 (S.D.N.Y. Sept. 17, 1997)
(Sotomayor, J.) (concluding that, the absence of a working
toilet in prison cell for approximately ten hours, without any
allegation that the prisoner risked contamination by contact
with human waste, did not rise to the level of cruel and
unusual punishment). In the absence of allegations of serious
physical harm or serious risk of contamination, courts have
routinely rejected unconstitutional conditions of confinement
claims where plaintiffs have alleged that they experienced
pain or discomfort and were forced to relieve themselves in
their clothing as a result of waiting to use a bathroom. See
Whitted, 1998 WL 259929, at *2 (finding that the inmate
failed to establish an objective injury where he was forced
to wait one and a half hours to use the bathroom, during
which time he “was forced to hold his bowel movement at
painful levels, and at times partially urinated and defecated
in his clothing.”); Gill v Riddick, No. 9:03-CV-1456, 2005
WL 755745, at *16 (N.D.N.Y. Mar. 31, 2005) (concluding no
Eighth Amendment violation in the absence of allegations of
serious injury to the inmate's health as a result of being forced
to hold his urine for approximately 70 minutes); Bourdon v.
Roney, No. 9:99-CV-0769 (LEK/GLS), 2003 WL 21058177,
at *30-31 (N.D.N.Y. Mar. 6, 2003) (observing that “[t]he
standard for analyzing a pre[-]trial detainee's [conditions of
confinement] claim is the same as the Eighth Amendment
standard,” and holding that the pre-trial detainee's allegations
of being deprived of bathroom privileges for a maximum of
three hours while locked in a hot police car without water
“failed to adequately allege that he was denied minimal
necessities of civilized life for a substantial period of time”
in violation of his constitutional rights); see also Qawi v.
Howard, No. Civ-A-98-220 (GMS), 2000 WL 1010281, at
*3-4 (D. Del. July 7, 2000) (holding that the denial of the
use of a bathroom for six hours during which the inmate was
forced to urinate in drinking cup and bowl and defecate into
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a paper bag did not constitute sufficiently serious deprivation
because the duration of the condition was brief and the inmate
suffered no significant health risk).
On the other hand, courts have, under certain circumstances,
found that the denial of bathroom access may give rise
to an Eighth Amendment violation. For example, in Hart
v. City of New York, the Court refused to dismiss an
inmate's Eighth Amendment claim where he alleged that the
defendant correction officers ignored his repeated requests
to use the bathroom for 12 hours, which forced plaintiff to
“repeatedly soil himself and remain[ ] imprisoned in urine-
soaked clothing,” despite having been informed that the
plaintiff suffered from multiple sclerosis which caused the
need for frequent urination. Hart v. City of New York, No.
11-CV-4678 (RA), 2013 WL 6139648, at *7 (S.D.N.Y. Nov.
18, 2013). Further, in DeBlasio v. Rock, the Court denied the
defendants’ motion for summary judgment as to an inmate's
Eighth Amendment claim of unconstitutional conditions of
confinement where he alleged that the defendant correction
officers handcuffed him behind his back and refused to
“remove [his] handcuffs so that he could use the bathroom”
for five hours, ultimately forcing the inmate to urinate and
defecate on himself. DeBlasio v. Rock, No. 9:09-CV-1077
(TJM/GHL), 2011 WL 4478515, at *16 (N.D.N.Y. Sept. 26,
2011).
Here, plaintiff has not alleged any “serious physical harm
or a serious risk of contamination” as a result the denial
of bathroom access on August 1, 2017. Whitted, 1998 WL
259929, at *2. Rather, plaintiff contends only in conclusory
terms that he requested “to use the restroom for relief.”
Compl. at 6 ¶ 13. The complaint does not allege that
plaintiff experienced any pain or significant discomfort, that
he was forced to urinate or defecate in his clothing, or that
he has suffered any persisting physical injury as a result
of his experience. Cf. Whitted, 1998 WL 259929, at *2.
Further, unlike in Hart, plaintiff does not allege that he made
defendants aware of any medical condition which would
necessitate an exceptional need for bathroom access, or that
this deprivation extended beyond the single, isolated incident
on August 1, 2017. Cf. Hart, 2013 WL 6139648, at *7; accord
Hutto, 437 U.S. at 686–87.
Moreover, although Rock involved a handcuffed inmate
who was deprived bathroom access for a comparable period
of time to plaintiff, that case appears distinguishable. The
plaintiff in Rock specifically alleged that the defendants had
applied handcuffs behind his back, which prevented him from
using the bathroom in his cell for approximately five hours
until he was forced to urinate and defecate on himself. See
id. Here, by contrast, plaintiff asserts only that his handcuffs
and chains were applied “tight” and that he requested that the
handcuffs and chain be loosened but does not state any facts
from which the Court can infer that his handcuffs hindered
him from relieving himself. Cf. Rock, 2011 WL 4478515,
at *16. Thus, the present case appears more analogous to
cases in which an inmate has alleged an Eighth Amendment
violation based on temporary discomfort due to a fairly brief
and isolated denial of bathroom access without any serious
physical harm or serious risk of contamination. See Whitted,
1998 WL 259929, at *2.
*10 Similarly, concerning the application of “tight”
handcuffs and chain, the complaint fails to allege facts
demonstrating that the use of these restraints while plaintiff
was confined in his cell was sufficiently serious such that
it posed “an unreasonable risk of serious damage to [the
plaintiff's] health.” Darnell, 849 F.3d at 30 (quoting Walker,
717 F.3d at 125). As discussed in detail in part II.B.1 supra,
plaintiff alleged only that he suffered temporary “soreness” as
a result of the application of the chains and handcuffs and does
not allege that he sought or required medical attention, or that
he is currently suffering any injury as a result thereof. Compl.
at 10 ¶ 41. Such minor discomfort cannot be said to pose
an “unreasonable risk of serious damage to [the plaintiff's]
health.” Darnell, 849 F.3d at 30; see also Hudson, 503 U.S.
at 9 (“routine discomfort is part of the penalty that criminal
offenders pay for their offenses against society” (internal
quotation marks and citation omitted)). Thus, plaintiff's
Eighth Amendment claim for unconstitutional conditions of
confinement insofar as premised upon the application of tight
handcuffs and temporary denial of bathroom access fails to
satisfy the objective prong of the Eighth Amendment test.
Accordingly, it is unnecessary to reach the subjective prong
because “without a constitutional violation, [d]efendants
clearly could not have acted with ‘deliberate indifference.’
” Gill, 2005 WL 755745, at *16 (quoting Odom, 1997 WL
576088, at *5).
ii. Denial of Food and Water
Plaintiff asserts that defendants subjected him to
unconstitutional conditions of confinement in violation of
his Eighth Amendment rights by depriving him of food
and water between 1:00 P.M. and sometime between 6:00
P.M. and 6:30 P.M. on August 1, 2017, when he arrived at
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Upstate. See Compl. at 6 ¶ 20, 11 ¶ 43. He concedes that,
“[b]etween 6[:00] p.m. [and] 6:30 p.m., [he] was offered a
hot tray of food, which was freezer cold.” Id. at 6 ¶ 20.
Defendants contend that plaintiff fails to state a claim because
the temporary deprivation of food and water “has been
routinely found insufficient to state a[n] [Eighth Amendment]
conditions[ ]of[ ]confinement claim.” Dkt. No. 12-1 at 5.
The deprivation of food, as any other deprivation, must be
tested by the same Eighth Amendment analysis. In order
to rise to the level of an Eighth Amendment claim, the
deprivation must be sufficiently serious, and the defendant
must have been deliberately indifferent to the inmate's health
or safety. See Farmer, 511 U.S. at 834. As the Second
Circuit has noted, courts have not explicitly held that the
denial of food is a per se violation of a prisoner's Eighth
Amendment rights. See Robles v. Coughlin, 725 F.2d 12, 15
(2d Cir. 1983) (citing Moss v. Ward, 450 F. Supp. 591, 596
(W.D.N.Y. 1978)). However, “under certain circumstances[,]
a substantial deprivation of food may well be recognized
as being of constitutional dimension.” Id. For example,
depriving a prisoner of all food for four consecutive days was
held to have violated the Eighth Amendment. Moss, 450 F.
Supp. at 596-97.
On the other hand, “isolated” deprivations of food do not
typically rise to the level of an Eighth Amendment violation.
Reeder v. Hogan, No. 9:09-CV-520, 2012 WL 4107822, at
*18 (N.D.N.Y. July 11, 2012), report and recommendation
adopted 2012 WL 4106740 (N.D.N.Y. Sept. 19, 2012).
For example, allegations of intermittent deprivations for
periods of approximately eight- and one-half hours, twenty-
three hours, and during periods of confinement, were held
insufficient to state an Eighth Amendment conditions of
confinement claim. See Little v. Mun. Corp., 51 F. Supp.
3d 473, 490 (S.D.N.Y. 2014); see also Konovalchuk v.
Cerminaro, No. 9:11-CV-01344 (MAD/CFH), 2014 WL
272428, at *21 (N.D.N.Y. Jan. 24, 2014) (holding that
an inmate's claim that he missed two consecutive meals
while being transported to-and-from the courthouse was
“not substantial and d[id] not amount to cruel and unusual
punishment.”); Zimmerman v. Seyfert, No. 9:03-CV-1389
(TJM), 2007 WL 2080517, at *27 (N.D.N.Y. July 19, 2007)
(holding that requiring the plaintiff to go eleven hours without
eating did not rise to the level of a constitutional claim).
Moreover, courts in this Circuit have held that being denied a
single meal does not give rise to a constitutional deprivation.
See, e.g., Hankerson v. Nassau Cnty. Corr. Facility, No. 12-
CV-5282 (SJF/WDW), 2012 WL 6055019, at *3 (E.D.N.Y.
Dec. 4, 2012) (“[The plaintiff's] allegation that he was denied
a single meal while incarcerated ... does not give rise to a
constitutional deprivation.”); Scarbrough v. Evans, No. 11-
CV-131 (NAM/DRH), 2012 WL 4364511, at *5 (N.D.N.Y.
May 17, 2012) (“[T]he denial of a single meal is insufficient
to state a claim for relief.”) (citations omitted).
*11 Here, it is undisputed that plaintiff did not receive food
from 1:00 P.M. until between 6:00 P.M. and 6:30 P.M. on
August 1, 2017—a deprivation which lasted, at most, five and
one-half hours. See Compl. at 11 ¶ 43. Thus, plaintiff's claim
in this regard fails to satisfy the objective prong of the test,
as he does not allege a deprivation of “the measure of food
necessary to maintain health, but rather ha[s] described the
sort of isolated withholding[ ] that do[es] not typically rise
to [the] level of constitutional significance.” Reeder, 2012
WL 4107822, at *18; see Zimmerman, 2007 WL 2080517,
at *27. 9 Further, as defendants argue, the lack of a meal
over the course of five and one-half hours is “not an atypical
experience for most people over the course of an ordinary
day, let alone those ... subjected to the more restrictive ...
conditions of a prison setting.” Dkt. No. 12-1 at 7. Indeed,
this alleged deprivation is less significant than deprivations
of food found to be insufficient to state a claim for cruel and
unusual punishment. See Konovalchuk, 2014 WL 272428,
at *21; Zimmerman, 2007 WL 2080517, at *27. Thus, even
affording the complaint the most liberal construction possible,
plaintiff does not even assert the denial of a single meal—a
legally insufficient basis to support a constitutional claim. See
Hankerson, 2012 WL 6055019, at *3; Scarbrough v. Evans,
2012 WL 4364511, at *5.
9 Insofar as the complaint may be construed as
alleging an Eighth Amendment violation based
on the provision of “freezer cold” food, plaintiff
fails to state a claim. Compl. at 6 ¶ 20. It is well
established that “[t]he provision of cold food, is
not, by itself, a violation of the Eighth Amendment
as long as it is nutritionally adequate and is
prepared and served under conditions which do
not present an immediate danger to the health
and well being of the inmates who consume it.”
Martin v. Oey, No. 9:16-CV-00717 (TJM/TWD),
2017 WL 6614680, at *6 (N.D.N.Y. Nov. 28, 2017)
(internal quotation marks and citation omitted).
Here, the complaint is devoid of allegations that
the food was prepared or served under conditions
presenting an immediate danger to plaintiff's health
or wellbeing; therefore, the alleged provision of
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cold food, without more, fails to state a claim
upon which relief may be granted. See id.; see also
Brooks v. NYC DOC Comm'r, No. 14-CV-6283
(RRM/CLP), 2016 WL 4530456, at *4-5 (E.D.N.Y.
Aug. 29, 2016) (sua sponte dismissing cause of
action based on the failure to provide hot meals
where there was no allegation that the inmate did
not receive nutritionally adequate meals).
Plaintiff likewise fails to allege facts sufficient to state
a claim for cruel and unusual punishment based on the
temporary denial of drinking water. Liberally construing
plaintiff's claim, his deprivation of drinking water coincided
with his deprivation of food. See Compl. at 5 ¶ 12. Therefore,
as plaintiff admits that he was provided a meal sometime
between 6:00 P.M. and 6:30 P.M., this claim, too, amounts
only to a short, isolated deprivation and, therefore, does not
arise to the level of an Eighth Amendment violation. See
Mortimer Excell v. Fischer, No. 9:08-CV-945, 2009 WL
3111711, at *5-6 (N.D.N.Y. Sept. 24, 2009) (holding that, to
the extent the plaintiff alleged that he was denied water during
the same 24-hour period he was denied a meal, he failed to
state a constitutional claim); McGee v. Pallito, No. 10-CV-11,
2011 WL 6291954, at *13 (D. Vt. Aug. 3, 2011) (“temporary
deprivations of drinking water are not unconstitutional”),
report and recommendation adopted, 2011 WL 6294202 (D.
Vt. 2011); see also Beckford v. Portuondo, 151 F. Supp.
2d 204, 211 (N.D.N.Y. 2001) (“Nowhere has it been held
that prisoners are entitled to complete and unfettered access
to water or showers.”). Thus, plaintiff's Eighth Amendment
claim premised on the denial of food and water fails to
satisfy the objective element of the Eighth Amendment
test. Therefore, as plaintiff has failed to adequately plead
a constitutional violation, it is unnecessary to reach the
subjective prong. See Gill, 2005 WL 755745, at *16 (quoting
Odom, 1997 WL 576088, at *5).
iii. Plaintiff's Cellmate
*12 Liberally construed, the complaint also alleges that
plaintiff was subjected to unconstitutional conditions of
confinement because he was housed with a “violent gang
member.” Compl. at 11 ¶ 43, 7 ¶ 22. Plaintiff contends that,
as a result of being housed with this inmate, he was unable to
“sleep for days” and experienced “psychological pain.” Id. at
11 ¶43. Defendants posit that plaintiff fails to a claim in this
regard because he “does not allege that he suffered any injury
or harm as a result.” Dkt. No. 12-1 at 8.
Despite plaintiff's conclusory assertion, he has failed to
proffer sufficient factual allegations to establish an Eighth
Amendment claim based on his placement with his cellmate
at Upstate. Iqbal, 556 U.S. at 678. Even viewing the facts
in the light most favorable to plaintiff, he does not allege
how being placed in the cell with this inmate “pose[d] an
unreasonable risk of serious damage to [his] health.” Darnell,
849 F.3d 17, 30 (2d Cir. 2017) (quoting Walker, 717 F.3d at
125). As discussed in section II.B.2. supra, the complaint does
not state any factual allegations which could plausibly suggest
that defendants’ act of housing him with the purported gang
member placed him at risk of harm. Indeed, plaintiff does not
allege that his cellmate threatened or harmed him in any way,
and plaintiff has not alleged any communication between him
and defendants indicating that he informed defendants that his
cellmate presented any specific risk to him, or that defendants
were aware of, but disregarded, any such risk. See section
II.B.2. supra.
Further, plaintiff's vague assertion that he lost sleep for an
unspecified number of days as a result of being housed
with this inmate fails to assert facts plausibly alleging an
objectively serious injury. See generally Phelan v. Durniak,
No. 9:10-CV-666 (FJS/RFT), 2014 WL 4759937, at *10
(N.D.N.Y. Sept. 24, 2014) (holding that the plaintiff's
allegations that he was unable to sleep and suffered migraines
because of the noise of the other inmates’ televisions and
radios late at night failed to satisfy the objective element of
an Eighth Amendment claim); Cf. Mena v. City of New York,
No. 13-CV-2430 (RJS), 2014 WL 4652570, at *4 (S.D.N.Y.
Sept. 18, 2014) (concluding that the plaintiff plausibly alleged
facts to support an inference that he was objectively prevented
from sleeping at all for approximately two and one half days
from being forced to lie on a cold, wet floor in a cell large
enough for only one inmate as opposed to the three inmates
who were housed there). Moreover, plaintiff's assertion that
he suffered psychological pain is wholly conclusory and,
as discussed in section II.B.2, the complaint contains no
allegations that plaintiff ever sought therapy or other medical
treatment following the alleged placement with his cellmate.
See Iqbal, 556 U.S. at 664. Plaintiff has, therefore, failed to
state an Eighth Amendment claim against defendants based
on the alleged placement in the cell with a purported gang
member.
In sum, the complaint fails to allege “conditions [that] either
alone or in combination, pose[d] an unreasonable risk of
serious damage to [the plaintiff's] health.” Darnell, 849 F.3d
at 30 (quoting Walker, 717 F.3d at 125). Accordingly, it is
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recommended plaintiff's Eighth Amendment conditions of
confinement claim be dismissed.
C. First Amendment Retaliation
Plaintiff alleges that defendants retaliated against him by
placing him in a cell with a “violent gang member” for
threatening to file grievances and a federal civil rights lawsuit
based on their denial of plaintiff's requests for protective
custody, to loosen his chains and handcuffs, food and water,
and bathroom access, in violation of his First Amendment
rights. Compl. at 9-10 ¶ 39. The complaint may also be
construed as asserting a First Amendment retaliation claim
based on C.O. King's alleged threat to file a false misbehavior
report against plaintiff. See id. at 6 ¶¶ 17. Defendants contend
that plaintiff fails to sufficiently plead a First Amendment
retaliation claim because “[p]laintiff's verbal requests for
protective custody ... do not constitute protected speech,” and
even if they did, “the alleged application of tight handcuffs
and chains” and the temporary denial of food, water, and
bathroom access does not constitute adverse action. Dkt. No.
12-1 at 10, 11.
*13 In order to establish a First Amendment retaliation claim
under Section 1983, a prisoner must allege the following: that
“(1) the speech or conduct at issue was protected, (2) the
defendant took adverse action against the plaintiff, and (3)
there was a causal connection between the protected speech
and the adverse action.” Espinal v. Goord, 558 F.3d 119,
128 (2d Cir. 2009) (internal quotation marks and citations
omitted). Because of the potential for abuse and the “ease with
which claims of retaliation may be fabricated,” courts must
examine prisoner retaliation claims with “skepticism and
particular care.” Johnson v. Eggersdorf, 8 F. App'x 140, 144
(2d Cir. 2001) (summary order) (quoting Colon v. Coughlin,
58 F.3d 865, 872 (2d Cir. 1995)).
It is well settled that the filing of administrative grievances
and lawsuits constitutes protected speech. See Davis v.
Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) (“the filing of
prison grievances is a constitutionally protected activity”);
Williams v. Ingraham, No. 04-CV-257 (GLS/DRH), 2005
WL 3746222, at *2 (N.D.N.Y. Feb. 3, 2005) (“The
[inmate's] conduct at issue—complaints to judicial officials,
filing a lawsuit, and grievances—are clearly constitutionally
protected rights”) (citing Morales v. Mackalm, 278 F.3d 126,
131 (2d Cir. 2002)). Further, courts in this Circuit have
routinely found that a prisoner's threat of filing a grievance
or lawsuit constitutes protected activity. See Flemming v.
King, No. 14-CV-316 (DNH/CFH), 2016 WL 5219995, at
*4 (N.D.N.Y. June 20, 2016) (concluding that inmate's threat
to file lawsuit sufficient to establish protected activity),
report and recommendation adopted, No. 9:14-CV-0316
(DNH/DEP), 2016 WL 5173282 (N.D.N.Y. Sept. 21, 2016);
Gibson v. Fischer, No. 9:10-CV-0968 (LEK/TWD), 2014 WL
7178346, at *15 (N.D.N.Y. Dec. 15, 2014) (denying summary
judgment as to retaliation claim where the plaintiff threatened
to file a grievance); Sprau v. Coughlin, 997 F. Supp. 390,
393 (W.D.N.Y. 1998) (finding a prisoner's threat to file a
complaint sufficient to establish protected activity). Here,
plaintiff's threat to file grievances and a lawsuit constitutes
protected activity; therefore, the complaint satisfies the first
prong of the First Amendment retaliation test. See Flemming,
2016 WL 5219995, at *4; Gibson, 2014 WL 7178346, at *15;
Sprau v. Coughlin, 997 F. Supp. at 393.
To adequately plead an “adverse action,” a plaintiff must
allege that he was subject to “retaliatory conduct that would
deter a similarly situated individual of ordinary firmness from
exercising ... constitutional rights.” Gill, 389 F.3d at 381
(internal quotation marks and citations omitted). Courts in this
Circuit have found that a prison official defendant's “refusal
of protective custody” can be an “adverse action” for the
purposes of a First Amendment retaliation claim because it
could cause a prisoner to “fear[ ] for his safety.” Cruz v.
Grosso, No. 9:13-CV-30 (FJS/TWD), 2014 WL 2176256, at
*7 (N.D.N.Y. May 23, 2014); see also Cruz v. Lee, No. 14-
CV-4870 (NSR/JCM), 2016 WL 1060330, at *7 (S.D.N.Y.
Mar. 15, 2016) (“[p]laintiff alleges that [the d]efendants’
denial of protective custody ... constitutes an adverse action
because [the p]laintiff feared for his safety without custodial
protection. It cannot be said, as a matter of law, that this fear
would not deter a similarly situated individual from filing
further lawsuits or grievances. Therefore, [the p]laintiff has
sufficiently alleged an adverse action.”).
Here, plaintiff alleges that he requested protective custody out
of fear that a gang member would retaliate against him for his
altercation at Clinton and that defendants denied his request.
See Compl. at 5 ¶ 8. Thus, accepting plaintiff's allegations
as true, defendants’ denial of protective custody could be
considered adverse action. See Lee, 2016 WL 1060330, at *6;
Grosso, 2014 WL 2176256, at *6.
*14 As for the third element,
“[p]roof of causal connection can be established indirectly
by showing that the protected activity was followed closely
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by discriminatory treatment ... or through other evidence
such as disparate treatment of fellow employees who
engaged in similar conduct, or directly through evidence
of retaliatory animus directed against a plaintiff by the
defendant.”
DeCintio v. Westchester County Med. Ctr., 821 F.2d 111,
116 (2d Cir. 1987) (internal citations omitted). With regard
to temporal proximity, the Second Circuit “has not drawn a
bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship
between the exercise of a federal constitutional right and an
allegedly retaliatory action.” Gorman-Bakos v. Cornell Coop.
Extension, 252 F.3d 545, 554 (2d Cir. 2001).
However, as the Second Circuit explained:
[P]risoner retaliation claims are
easily fabricated, and ... pose a
substantial risk of unwarranted judicial
intrusion into matters of general
prison administration. Accordingly,
while we have held that temporal
proximity between protected conduct
and an adverse action constitutes
circumstantial evidence of retaliation,
we have consistently required some
further evidence of retaliatory animus
before permitting a prisoner to proceed
to trial on a retaliation claim.
Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (summary
order) (internal citations and quotation marks omitted).
For example, in Lee, the court concluded that an inmate
sufficiently established a causal connection where he alleged
facts demonstrating a “close temporal proximity” between the
protected activity of filing a lawsuit and the adverse action of
defendants denying his requests for protective custody “taken
together with [the d]efendants’ knowledge of the protected
activity and statements tending to demonstrate a retaliatory
motive.” Lee, 2016 WL 1060330, at *7. Similarly, in Grosso,
the inmate alleged that he informed the defendant of his
pending lawsuit the same day that the defendant refused him
protective custody status and that the defendant stated the
reason for denying protective custody was because the inmate
was “go[ing] against [prison] [a]dministration.” Grosso, 2014
WL 2176256, at *7. Observing the temporal proximity of
the protected activity and adverse action, and noting that the
defendant's statement “plausibly suggest[ed] a reason for the
refusal of protective custody [that] related to retaliation,” the
Court concluded that the inmate established the causation
prong for a First Amendment retaliation claim. Id.
Here, although close in temporal proximity, as the complaint
makes clear, the adverse action of denying plaintiff's request
for protective custody occurred prior to plaintiff threatening
to file grievances and lawsuits, and well before plaintiff
actually filed his two grievances or the present lawsuit. See
Compl. at 6 ¶¶ 15, 20. Therefore, as the alleged adverse action
preceded plaintiff's threat to file grievances and a lawsuit,
plaintiff cannot show that defendants’ denial of protective
custody was motivated by this conduct. See, e.g., Gustafson
v. Vill. of Fairport, 106 F. Supp. 3d 340, 353 (W.D.N.Y. 2015)
(holding that the plaintiff failed to establish a causal link
to support his First Amendment retaliation claim where the
alleged adverse action of defendant police officers beating
him preceded his constitutionally-protected expression of
requesting an attorney).
*15 Additionally, insofar plaintiff's claim can be read to
allege that defendants retaliated against him in violation of
his First Amendment rights based on his repeated requests for
protective custody, the complaint fails to state a claim because
such requests do not appear to be constitutionally-protected
speech. Rather, plaintiff's request for protective custody, in
effect, constitutes a request for transfer to housing of his
preference, which is not constitutionally protected speech.
See Barrow v. Buren, No. 9:12-CV-01268 (MAD/CFH), 2015
WL 417084, at *13 (N.D.N.Y. Jan. 30, 2015) (concluding
that an inmate's transfer requests were not constitutionally-
protected speech); see generally McMahon v. Fischer, 446 F.
App'x 354, 357 (2d Cir. 2011) (summary order) (“A prisoner
has no right to housing in a particular facility”). Plaintiff's
position would yield absurd results, as every denial of an oral
request for protective custody status would give rise to a First
Amendment retaliation claim. Therefore, the undersigned
finds that the complaint fails to satisfy the first element for a
First Amendment retaliation claim in this regard.
Moreover, to the extent that the complaint may be read as
alleging that defendants retaliated against plaintiff for stating
his intention to file grievances and lawsuits based on C.O.
King's purported threat to file a false misbehavior report, even
assuming arguendo that plaintiff's stated intention could be
considered constitutionally-protected speech, plaintiff fails to
state a First Amendment retaliation claim. See Compl. at 6 ¶
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16, 17. As articulated in the complaint, C.O. King informed
plaintiff that he had been instructed to file a misbehavior
report and that “the Sgt. want[ed] to write [him] a ticket”
based on plaintiff's refusal to follow a direct order to lock into
a cell shortly after stating that he would file grievances and
lawsuits. See Compl. at 6 ¶¶ 17, 19. Plaintiff denies that he
refused to follow a direct order from defendants. See id. at 6
¶¶ 18. Therefore, liberally construing the complaint, plaintiff
appears to allege that C.O. King threatened to file a false
misbehavior report.
As an initial matter, plaintiff does not allege that C.O. King
actually wrote a misbehavior report, and no misbehavior
report is contained in plaintiff's submissions; rather, plaintiff
merely asserts that C.O. King threatened write a misbehavior
report. In any event, it is well settled that a correction
officer's filing of a false misbehavior report to prevent an
inmate from seeking redress does not rise to the level of a
constitutional violation in the absence of evidence that the
filing of the false report actually hindered or prevented the
inmate from exercising his constitutional right to seek redress
through either the prison grievance procedure or by filing a
lawsuit. See Nelson v. Michalko, 35 F. Supp. 2d 289, 294
(W.D.N.Y. 1999); Husbands v. McClellan, 957 F. Supp. 403,
407 (W.D.N.Y. 1997). Here, plaintiff does not allege that C.O.
King's purported threat to file a false misbehavior report in
any way hindered or prevented him from exercising his First
Amendment right to file grievances and lawsuits. Indeed, it
is undisputed that plaintiff, in fact, did file two grievances
and this lawsuit subsequent to C.O. King's purported threat.
Accordingly, based on the foregoing, it is recommended that
plaintiff's First Amendment retaliation claim be dismissed in
its entirety and that defendants’ motion be granted on this
ground.
D. Conspiracy
Plaintiff alleges that defendants “entered into an agreement
that if [he] continue[d] to request protective custody status,
and make their job extensive by filing extra paperwork[,]
they ... [would] ... keep [him] locked in a holding cell, chained
and tightly cuffed, without food, water or use of the bathroom,
until [he] br[oke] down and forg[ot] about wanting protective
custody.” Compl. at 9 ¶ 37. Defendants argue that plaintiff's
conspiracy claim must be dismissed because the underlying
claims upon which it is based fail to state a claim for relief.
See Dkt. No. 12-1 at 10.
*16 In order to support a claim for conspiracy pursuant to §
1983, there must be “(1) an agreement ...; (2) to act in concert
to inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Ciambriello
v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002);
Cusamano v. Sobek, 604 F. Supp. 2d 416, 468 (N.D.N.Y.
2009). “An agreement must be proven with specificity as bare
allegations of a conspiracy supported only by allegations of
conduct easily explained as individual action is insufficient.”
McRae v. Fischer, No. 9:17-CV-0146 (BKS/CFH), 2018
WL 3432743, at *6 (N.D.N.Y. June 6, 2018), report and
recommendation adopted, No. 9:17-CV-00146 (BKS/CFH),
2018 WL 3432700 (N.D.N.Y. July 16, 2018). Although exact
specifics are not required, “the pleadings must present facts
tending to show agreement and concerted action.” Anilao v.
Spota, 774 F. Supp. 2d 457, 512-13 (E.D.N.Y. 2011) (citations
omitted). Conclusory, vague, and general allegations are
insufficient to support a conspiracy claim. See Ciambriello,
292 F.3d at 325.
Here, even construing the facts in the light most favorable
to plaintiff, plaintiff has failed to advance anything more
than conclusory allegations of a conspiracy. There are no
allegations outlining with specificity when, why, or how an
alleged conspiracy occurred or the existence of an explicit
or implicit agreement between any or all of the defendants.
Even though exacting specifics are unnecessary at the
pleading stage, the complaint is devoid of factual allegations
establishing that defendants had any meeting of the minds
in which they contemplated “break[ing] plaintiff down”
until he “forgot about wanting protective custody status.”
Compl. at 9 ¶ 37; see Anilao, 774 F. Supp. 2d at 512-13.
Rather, plaintiff merely alleges, in conclusory fashion, that
defendants “entered into an agreement” to do so. Compl. at 9
¶ 37. Likewise, plaintiff conclusorily alleges that defendants
wanted to curtail him from requesting protective custody
status in order to avoid “filing extra paperwork,” but fails to
offer any indication as to when, where, or how defendants
agreed to execute the purported conspiracy. Compl. at 9 ¶
37. Beyond stating that C.O. King informed plaintiff that
Sgt. Hoffnagle wanted to write him a misbehavior report for
failing to follow a direct order to lock into a cell, which
plaintiff does not allege was ever filed, the complaint fails
to plead a “meeting of the minds between any of the[ ]
[d]efendants to act in concert to inflict a constitutional injury
on [p]laintiff.” Cusamano, 604 F. Supp. 2d at 432.
In any event, although not addressed by the parties, plaintiff's
claim also fails as it is likely barred by intracorporate
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conspiracy doctrine. The intracorporate conspiracy doctrine
provides that officers, employees, and agents of a single
corporate entity are legally incapable of conspiring together.
See Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008).
Although the Second Circuit has recognized that the doctrine
applies in the Section 1985 context, see id., it has not passed
directly on the doctrine's applicability in the Section 1983
context. However, district courts within the Circuit have
applied the doctrine to such claims. See Vega v. Artus,
610 F. Supp. 2d 185, 205-06 (N.D.N.Y. 2009) (dismissing
conspiracy claim pursuant to intracorporate conspiracy
doctrine where all of the defendants were DOCCS employees
acting within the scope of their employment); see also
Williams v. Korines, No. 9:16-CV-1157 (FJS/TWD), 2018
WL 4521204, at *5 n.1 (N.D.N.Y. Sept. 21, 2018) (concluding
that the intracorporate conspiracy doctrine applied to an
inmate's Section 1983 conspiracy claim); Richard v. Dignean,
126 F. Supp. 3d 334, 338-39 (W.D.N.Y. 2015) (finding
intracorporate conspiracy doctrine applicable to claim by
inmate against prison officials for discrimination against
him based on race and religion); Toliver v. Fischer, No.
9:12-CV-00077 (MAD/ATB), 2015 WL 403133, at *22
(N.D.N.Y. Jan. 29, 2015) (dismissing conspiracy claim by
inmate against DOCCS personnel under the intracorporate
conspiracy doctrine).
*17 An exception to the intracorporate conspiracy doctrine
applies when the individuals are “pursuing personal interests
wholly separate and apart from the entity.” Ali v. Connick,
136 F. Supp. 3d 270, 282-83 (E.D.N.Y. 2015) (citation and
internal quotation marks omitted). However, a plaintiff must
show more “than simply alleging that the defendants were
motivated by personal bias against the plaintiff.” Medina
v. Hunt, No. 9:05-CV-1460 (DNH), 2008 WL 4426748, at
*8 (N.D.N.Y. Sept. 25, 2008); see also Vega, 610 F. Supp.
2d at 205 (holding that “in order to allege facts plausibly
suggesting that individuals were pursuing personal interests
wholly separate and apart from the entity” to overcome
the intracorporate conspiracy doctrine “more is required of
a plaintiff than simply alleging that the defendants were
motivated by personal bias against plaintiff.”).
Here, all defendants were DOCCS employees during the
period set forth in the Complaint and all were acting within
the scope of their employment. Therefore, the intracorporate
conspiracy doctrine applies. See Vega, 610 F. Supp. 2d
at 205-06. Additionally, plaintiff has not alleged facts to
plausibly suggest that the exception to the intracorporate
conspiracy doctrine applies. Plaintiff's conclusory allegation
that defendants conspired to violate his constitutional rights
in retaliation for his repeated requests for protective custody,
which would have “ma[de] their job extensive by” creating
“extra paperwork” for them to file, Compl. at 9 ¶ 37, does
not appear to establish that defendants acted out of personal
interests wholly separate and apart from Upstate. See, e.g.,
Richard v. Leclaire, No. 9:15-CV-00006 (BKS/TWD), 2017
WL 9511181, at *13, (N.D.N.Y. July 10, 2017) (concluding
that the pro se inmate failed to allege facts to establish the
personal interest exception to the intracorporation conspiracy
doctrine where he alleged that the defendants conspired to file
a false misbehavior report and rig a disciplinary hearing so
that he would be found guilty in retaliation for being found not
guilty in a prior prison disciplinary proceeding). Indeed, the
Complaint specifically alleges that, “[a]t all relevant times[,]
defendants acted under color of law,” Compl. at 5 ¶ 6, which
contradicts any claim that defendants acted out of personal
interest wholly distinct from those of Upstate. See Dowd v.
DeMarco, 314 F. Supp. 3d 576, 588 (S.D.N.Y. 2018) (holding
that the personal interest exception to the intracorporation
conspiracy doctrine did not apply where the inmate's
complaint alleged that the defendant correction officers’
purported acts “were conducted within the scope of their
official duties or employment.” (internal quotation marks
omitted)). Rather, plaintiff appears to allege that defendants
acted out of personal bias against him, which is insufficient
to defeat the application of the intracorporate conspiracy
doctrine. See generally Medina, 2008 WL 4426748, at *8.
Accordingly, it is recommended that plaintiff's conspiracy
claim be dismissed.
E. Supervisory Liability
Plaintiff alleges that, after he informed Sgt. Hoffnagle
that he desired to be placed on protective custody status,
Sgt. Hoffnagle “sent his subordinates[,]” C.O. King and
C.O. Hollenbeck, to “dissuade [him from] checking into
[protective custody] by threatening to issue a misbehavior
report,” after which the alleged First and Eighth Amendment
violations occurred. Compl. at 12 ¶ 45. Defendants argue
that plaintiff's supervisory claims against Sgt. Hoffnagle
must be dismissed because the underlying First and Eighth
Amendment claims upon which they are based fail to state
claims upon which relief can be granted. See Dkt. No. 12-1
at 8-9.
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*18 Supervisory officials may not be held liable for their
subordinates’ constitutional violations merely because they
are in a position of authority. Black v. Coughlin, 76 F.3d 72,
74 (2d Cir. 1996). In this Circuit, the “ ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ”
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting
Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991) (additional citations omitted)). However, supervisory
personnel may be considered personally involved in their
subordinate's conduct if:
(1) the defendant participated directly in the alleged
constitutional violation;
(2) the defendant, after being informed of the violation
through report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information indicating
that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing
Wright, 21 F.3d at 501 (additional citation omitted)). 10
Absent a subordinate's underlying constitutional violation,
there can be no supervisory liability. Hernandez v. Keane, 341
F.3d 137, 145 (2d Cir. 2003); see Elek v. Inc. Vill. of Monroe,
815 F. Supp. 2d 801, 808 (S.D.N.Y. 2011) (collecting cases
for the proposition that “because [p]laintiff has not established
any underlying constitutional violation, she cannot state a
claim for 1983 supervisory liability.”).
10 Various courts in the Second Circuit have
postulated how, if at all, the Iqbal decision affected
the five Colon factors which were traditionally used
to determine personal involvement. Pearce v. Estate
of Longo, 766 F. Supp. 2d 367, 376 (N.D.N.Y.
2011) (recognizing that several District Courts in
the Second Circuit have debated Iqbal’s impact
on the five Colon factors), rev'd in part on other
grounds sub nom., Pearce v. Labella, 473 F. App'x
16 (2d Cir. 2012) (summary order); Kleehammer v.
Monroe Cnty., 743 F. Supp. 2d 175, 185 (W.D.N.Y.
2010) (holding that “[o]nly the first and part of
the third Colon categories pass Iqbal’s muster....”);
D'Olimpio v. Crisafi, 718 F. Supp. 2d 340, 347
(S.D.N.Y. 2010) (disagreeing that Iqbal eliminated
Colon’s personal involvement standard).
Construing the complaint liberally, plaintiff appears to allege
supervisory liability under Colon factor one. See Colon, 58
F.3d at 873. As discussed in section II.B.1 supra, plaintiff has
plausibly asserted a claim for excessive force. Therefore, it
is recommended that defendants’ motion to dismiss plaintiff's
supervisory liability claim against Sgt. Haffnagle, insofar as it
is based upon his excessive force claim, be denied. However,
as discussed in sections II.B.2.-D supra, plaintiff has failed to
adequately allege the remainder of his constitutional claims
and, therefore, cannot state a claim for § 1983 supervisory
liability based upon those allegations. See Elek, 815 F. Supp.
2d at 808.
Accordingly, it is recommended that defendants’ motion be
granted as to plaintiff's supervisory liability claim against
Sgt. Hoffnagle insofar as it is based upon plaintiff's Eighth
Amendment failure to protect and conditions of confinement
claims and First Amendment retaliation claim. It is further
recommended that defendants’ motion to dismiss plaintiff's
supervisory claim be denied insofar as it is based upon
plaintiff's Eighth Amendment excessive force claim.
III. Conclusion
*19 WHEREFORE, based on the findings set forth above,
it is hereby:
RECOMMENDED, that defendants’ Motion to Dismiss
based upon Fed. R. Civ. P. 12(b)(6) (Dkt. No. 12) be
GRANTED IN PART and the following of plaintiff's claims
be DISMISSED WITH PREJUDICE:
(1) Eighth Amendment failure to protect claim;
(2) Eighth Amendment conditions of confinement claim;
(3) Conspiracy claim; and
(4) First Amendment retaliation claim;
(5) Supervisory claim against Sgt. Hoffnagle insofar as
that claim is based upon plaintiff's Eighth Amendment
failure to protect, conditions of confinement, and
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conspiracy claims, and First Amendment retaliation
claim, and it is further
RECOMMENDED, that defendants’ motion to dismiss
based upon Fed. R. Civ. P. 12(b)(6) (Dkt. No. 12) be DENIED
as to plaintiff's:
(1) Eighth Amendment excessive force claim;
(2) Supervisory claim against Sgt. Hoffnagle insofar as
that claim is based upon plaintiff's Eighth Amendment
excessive force claim; and it is further
ORDERED, that the Clerk of the Court serve a copy of
this Report-Recommendation and Order on all parties in
accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 6(a), 6(e), 72. 11
11 If you are proceeding pro se and are served with
this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you
have seventeen days from the date the Report-
Recommendation & Order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d).
If the last day of that prescribed period falls on
a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2019 WL 7500501
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Livingston v. Hoffnagle
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:19-CV-00353
Livingston v. Hoffnagle et al
— N.D.N.Y. Mar. 21, 2019 Docket
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Livingston v. Hoffnagle
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History (4)
Direct History (2)
1. Livingston v. Hoffnagle
2019 WL 7500501 , N.D.N.Y. , Nov. 08, 2019
Report and Recommendation Adopted by
2. Livingston v. Hoffnagle
2020 WL 95431 , N.D.N.Y. , Jan. 08, 2020
Related References (2)
3. Livingston v. Hoffnagle
2021 WL 3888283 , N.D.N.Y. , Aug. 03, 2021
Report and Recommendation Adopted by
4. Livingston v. Hoffnagle
2021 WL 3885247 , N.D.N.Y. , Aug. 31, 2021
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Livingston v. Hoffnagle
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Lewis v. Hanson, Not Reported in Fed. Supp. (2022)
2022 WL 991729
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Gunn v. Milani, S.D.N.Y., September 9, 2024
2022 WL 991729
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Raymond LEWIS, Plaintiff,
v.
Jason HANSON, et al., Defendants.
9:18-CV-0012 (LEK/DJS)
|
Signed 03/31/2022
Attorneys and Law Firms
Theresa M. Trzaskoma, Allegra Noonan, Sher Tremonte LLP,
Yu Han, Morrison & Foerster LLP, New York, NY, for
Plaintiff.
Ryan T. Donovan, Ryan E. Manley, Harris, Conway &
Donovan, PLLC, Albany, NY, for Defendant Jason Hanson.
Andrew R. Safranko, Lamarche Safranko Law PLLC,
Albany, NY, for Defendant Joseph Sharpe.
Cynthia E. Neidl, Katie Louise Birchenough, Greenberg
Traurig, LLP, Albany, NY, for Defendant Scott Mere.
Eric Michael Soehnlein, Sean O'Brien, Lippes Mathias
Wexler Friedman LLP, Buffalo, NY, Lawrence H. Schaefer,
Lippes Mathias Wexler Friedman LLP, Albany, NY, for
Defendant Zachary Peck.
Barry Nelson Covert, Diane M. Perri Roberts, Maxwell C.
Radley, Patrick Mackey, Lipsitz Green Scime Cambria LLP,
Buffalo, NY, for Defendant Craig Robideau.
Mark G. Mitchell, New York State Attorney General, Albany,
NY, for Defendants Jason Kearney, John Kingston.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 On April 11, 2019, Raymond Lewis filed his
amended complaint against several corrections officers
employed by the New York State Department of Corrections
and Community Supervision (“DOCCS”) at Bare Hill
Correctional Facility in Malone, New York (“Bare Hill”),
at all times relevant to this matter: Jason Hanson, Joseph
Sharpe, Craig Robideau, Zachary Peck, Scott Mere, Jason
Kearney and John Kingston. 1 Dkt. No. 61 (“Amended
Complaint”). Plaintiff's claims arise from circumstances
surrounding a use of force incident that occurred at
Bare Hill on April 23, 2016, and Plaintiff's subsequent
requests for medical aid on April 24, 2016. See Am.
Compl. at 4. Now before the Court are motions for
summary judgment filed by Robideau, Peck, Mere, Kearney,
and Kingston (collectively, “Defendants”). Dkt. Nos. 136
(“Robideau Motion”), 136-5 (“Robideau Memorandum”),
136-4 (“Robideau Statement of Material Facts” or “Robideau
SMF”), 136-1 (“Roberts Declaration”), 136-2 (“Exhibits A-
L”), 136-3 (“Robideau Declaration”); 137 (“Peck Motion”),
137-1 (“Peck Memorandum”), 137-2 (“Peck Statement
of Material Facts” or “Peck SMF”), 137-3 (“Soehnlein
Declaration”); 138 (“Mere Motion”), 138-2 (“Mere
Memorandum”), 138-1 (“Mere SMF”), 138-3 (“Birchenough
Declaration”), 138-4 (“Mere Declaration”), Dkt. Nos 139;
(“Kearney & Kingston Motion”), 139-16 (“Kearney &
Kingston Memorandum”), 139-17 (“Kearney & Kingston
Statement of Material Facts” or “Kearney & Kingston
SMF”), 139-1 (“Kearney Declaration”), 139-2 (“Kingston
Declaration”), 139-3 (“Mitchell Declaration”), 139-4
(“Plaintiff's Deposition”), 139-5 (“Kearney Deposition”),
139-6 (“Kingston Deposition”).
1 The Amended Complaint also contained claims
against Bruce Yelich, but all such claims were
dismissed pursuant to the Court's order on the
Motion to Dismiss filed by Kearney, Kingston, and
Yelich. See Dkt. Nos. 79, 100.
Plaintiff has responded. Dkt. Nos. 149 (“Plaintiff's Response
Memorandum”), 149-3 (“Plaintiff's Response to Defendants’
Statements of Material Facts and Statement of Material Facts”
or “Plaintiff's SMF”) 2 , 149-1 (“Plaintiff's Declaration”),
149-2 (“Noonan Declaration”). And all five defendants have
replied. Dkt. Nos. 154-3 (“Robideau Reply Memorandum”),
154-2 (“Robideau Reply SMF”), 154 (“Roberts Reply
Declaration”); 152 (“Peck Reply Memorandum”), 152-1
(“Peck Reply SMF”); 155 (“Mere Reply Memorandum”),
155-1 (“Mere Reply SMF”); 151 (“Kearney & Kingston
Reply Memorandum”).
2 Because Plaintiff has set forth his response to
Defendants’ statements of material facts in the
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
same document as his own statement of material
facts, the Court will cite to the sections responding
to Defendants SMFs (pages 1–42) by their page
number, but will cite to the sections setting forth
Plaintiff's own material facts (pages 43–54) by
their paragraph designation in order to most clearly
designate which of Plaintiff's allegedly material
facts are being referenced.
For the reasons set forth below, each of Defendants’ motions
for summary judgment is granted in part and denied in part.
II. BACKGROUND
A. Factual Background
1. Plaintiff's Alleged Phone
Violation and Transfer to the SHU
*2 The following facts are not in dispute except where noted.
In April of 2016, all Defendants were employed as corrections
officers at Bare Hill where Plaintiff was incarcerated.
Robideau SMF ¶ 2; Mere SMF ¶ 2; Peck SMF ¶ 10;
Kearney & Kingston SMF ¶¶ 12, 20; Pl.’s SMF ¶ 1. At this
time, Plaintiff had a lawsuit pending against Officer Brian
Cowan, who Plaintiff alleged had assaulted him while he was
incarcerated at the nearby Franklin Correctional Facility. Pl.’s
SMF ¶ 3.
On April 22, 2016, Plaintiff was on “cube confinement”
and was restricted from using the telephones. Pl.’s SMF ¶
8; Kearney & Kingston SMF ¶ 2. That day, Kearney was
assigned to the E-1 dorm where Plaintiff resided. Kearney &
Kingston SMF ¶ 14. An inmate approached Kearney, asked
to use the phone, and provided Plaintiff's ID number. Id.
¶ 15–16. When Kearney saw the ID number belonged to
an inmate with restricted phone privileges, he refused the
inmate's request and instructed him to return to his cube. Id. ¶
18. Kearney and Kingston assert that Plaintiff was the inmate
who requested to use the phone, id., while Plaintiff insists he
never approached Kearney or asked to make a phone call that
day, Pl.’s SMF at 4.
The next day, April 23, 2016, Defendant Kingston was on
duty as a Watch Commander. Id. ¶¶ 20, 24. Part of his
responsibilities as Watch Commander were to check phone
logs to see if inmates who had phone restrictions had been
using them improperly. Id. at 21. That day, Kingston claims he
reviewed the phone logs and found that Plaintiff's log showed
significant usage in violation of his phone restriction. Id. at
24. Plaintiff questions the veracity of Kingston's claim that he
did not notice the phone usage until that day, asserting that,
since Kingston admitted to reviewing phone logs three out
of every five days he worked, he would have noticed before
April 23 if Plaintiff's log had indeed shown such significant,
long-term usage over an 8-day period. Pl.’s SMF at 6.
When Defendant Hanson came on duty the day of April 23,
2016, Kingston claims he asked Hanson to take Plaintiff to the
special housing unit (“SHU”) for a phone violation. Kearney
& Kingston SMF ¶ 25. Kearney claims that Hanson then
approached him, showed him a picture of Plaintiff, and asked
if he knew who Plaintiff was. Id. ¶ 26. Apparently recognizing
Plaintiff as the inmate who had asked to use the phone the day
prior, Kearney described the incident to Hanson and wrote
a memorandum describing the alleged interaction. Id. ¶¶27–
29. Plaintiff claims that Kearney could not have recognized
him from the picture, because Plaintiff did not interact with
Kearney on April 22, 2016, and was not the inmate who
requested to use the phone that day. Pl.’s SMF at 6.
At some point later on April 23, 2016, Defendants Hanson
and Robideau came to Plaintiff's dorm and instructed him to
come with them. Pl.’s SMF ¶ 9. The two officers did not tell
him why he was being transferred or where he was going, but
handcuffed Plaintiff and placed him in a van. Id. ¶ 10. The
ride in the van took between 5 and 7 minutes. Robideau SMF
¶ 6; Pl.’s SMF at 41.
*3 Plaintiff contends that during the ride in the van,
Robideau began punching and kicking him while he was
still handcuffed, saying “our buddy told us to give you the
special treatment.” Id. ¶ 11. Plaintiff further contends that
upon arriving at the SHU, he was so severely injured that he
could not walk on his own and had to be dragged out of the
van and assisted into the building. Pl.’s SMF ¶ 12. Robideau
denies that he assaulted Plaintiff in the van or that Plaintiff
had to be helped into the SHU building. Robideau Reply SMF
at 8–9.
2. The Alleged Assault in the Special Housing Unit
The parties’ accounts vary dramatically regarding what
happened once Plaintiff entered the SHU.
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Plaintiff claims he was placed in the SHU strip-frisk room
together with Defendants Hanson, Robideau, Sharpe, Mere,
and another unidentified officer. Pl.’s SMF ¶¶ 13–14. Plaintiff
claims Hanson said “this nigger gets special treatment
because he filed a lawsuit against one of our brothers” before
punching him in the head and taking him to the ground. Pl.’s
SMF ¶¶ 15–16. Plaintiff then claims the other officers in the
room joined in kicking and punching him. Id. ¶ 17. Plaintiff
claims he heard one officer state “lets [sic] say he had a
weapon” and another state “lets [sic] say he assaulted one of
us.” Id. ¶ 18. According to Plaintiff's account, Plaintiff was so
severely injured he could not stand, and officers had to help
him lean against a wall. Id. ¶ 20. Nurse Harmon then came
to examine Plaintiff; Plaintiff asked for pain medication, but
she told him to sign up for sick call. Id. ¶ 21; Mere SMF ¶
17. Plaintiff alleges that Hanson then said Plaintiff looked like
he wanted to hurt himself and needed to be placed on suicide
watch. Pl.’s SMF ¶ 22. Once Plaintiff was escorted and placed
in the suicide watch cell, Plaintiff alleges Hanson grabbed him
by the neck and told him “if I hear anything about this, it can
all happen again.” Id. ¶ 23.
However, Robideau claims he did not enter the SHU with
Plaintiff at all, but instead left once Plaintiff entered the SHU
building. Robideau Reply SMF ¶ 13–14. Defendant Mere
likewise claims that he was never in the SHU strip-frisk room
with Plaintiff, but rather was on duty in the gym. Mere Reply
SMF ¶ 14, Mere SMF ¶¶ 6, 13. Mere further claims he did not
enter the SHU until after Plaintiff was already in the suicide
watch cell, because Mere had been assigned to cover the 1:1
suicide watch over Plaintiff, Mere Reply SMF ¶¶ 21–22, and
that he was never informed or aware of the use of force in the
SHU strip-frisk room, Mere SMF ¶ 24.
Plaintiff claims the Defendants each know Brian Cowan,
the officer at Franklin Correctional Facility against whom
Plaintiff had a lawsuit pending (the “Cowan Suit”), and
assaulted him in retaliation for filing the lawsuit. Pl.’s SMF
at 14, 31, 35. Defendants each deny any association with or
knowledge of Cowan or the lawsuit. Robideau Mem. at 17;
Peck SMF ¶ 15; Mere SMF ¶ 55; Kearney & Kingston SMF
¶¶ 66, 67.
3. Plaintiff's Requests for Medical Aid
Plaintiff asserts that while in the 1:1 cell, he was in severe
pain and was having difficulty breathing. Pl.’s SMF ¶ 24.
He further claims that, although Mere was supposed to be
watching him, he was not at his post. Id. ¶ 25. Plaintiff began
kicking the door to get Mere's attention and request his asthma
inhaler. Id. ¶ 26. Mere allegedly appeared after ten minutes
and said he would “look into” it. Id. at 27. After over an
hour with no word about his inhaler, Plaintiff again began
kicking the door to get Mere's attention. Id. ¶¶ 27, 28. A
different officer arrived, but refused to help. Id. ¶ 28. Plaintiff
asserts he began kicking the door again. Id. ¶29. A third
officer responded, and shortly after, returned with a nurse and
Plaintiff's asthma medication. Id.
*4 Mere contends that he began his 1:1 watch over Plaintiff
on April 23, at 4:05 PM, did not leave his post until 10:20 PM,
logged activity every 15 minutes, and that Plaintiff could see
and communicate with him that entire time. Mere Reply SMF
¶¶ 25–26. Mere claims that Plaintiff was not only kicking
the door, but yelling and slamming his body against it. Id. ¶
26; Mere SMF ¶ 27. Mere claims Plaintiff engaged in this
loud and disruptive behavior on at least 4 occasions, and
disregarded his orders to stop. Mere SMF ¶¶ 39–44. Further,
Mere asserts Plaintiff only asked for his inhaler one time,
after which Mere responded he would “look into” getting it,
and that a nurse arrived shortly after with the medication.
Mere Reply SMF ¶ 30, Mere SMF ¶¶ 31–32. Mere claims that
Plaintiff never complained of pain or requested medical aid.
Mere SMF ¶ 37.
The next day, on April 24, 2016, Plaintiff contends he was still
in severe pain, but was not given pain medication or breakfast.
Pl.’s SMF ¶ 31–34. At 6:30 PM, Plaintiff asserts that he still
felt unwell and kicked the cell door again when he could not
see an officer outside his cell. Id. ¶ 35–36. When Defendant
Peck arrived to start his duty on the 1:1 watch over Plaintiff,
Plaintiff claims he told Peck he was having a hard time
breathing and was having an asthma attack. Id. at 37. Peck
allegedly stated he would call the medical department, but
after an hour with no help, Plaintiff again asked Peck for the
asthma spray. Id. at 38. Plaintiff claims that Peck responded
that he would have to wait, at which time Plaintiff began
kicking the door again to get the attention of a sergeant. Id.
at 39. Non-party Sergeant Tamer arrived, whereupon Plaintiff
explained he was having trouble breathing and Tamer said he
would get the spray. Id. 40–41. After an additional one and
a half hours with no response, Plaintiff went to his cell door
again, but Peck was not there. Id. ¶ 42–43. Plaintiff began
kicking his cell door again. Id. ¶ 46. Another officer arrived
and provided the inhaler 15 minutes later. Id. ¶ 46.
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Peck claims that he did not know of the use of force incident
that occurred the prior day. Peck SMF ¶ 13. Peck asserts that
he visibly assessed Plaintiff, that everything seemed normal,
and that Plaintiff did not ask for medical aid, but merely
asked once when nurses would be making rounds. Peck SMF
¶ 16; Peck Dep. at 37. Afterward, Plaintiff began yelling,
kicking, and hitting his body against the door. Id. at 38–39.
Peck ordered Plaintiff to stop and requested that a roundsman
inform a sergeant of the situation. Peck SMF ¶ 20–21. Peck
claims that, at that point, Sergeant Tamer arrived and spoke
with Plaintiff, after which Plaintiff calmed down. Id. ¶ 22–23.
Around two hours later, Plaintiff resumed the same behavior.
Id. ¶ 24. When Plaintiff did not comply with a direct order to
stop, Peck issued a misbehavior ticket and Plaintiff stopped.
Id. ¶ 25. Peck denies that Plaintiff ever said he was having
chest pain or trouble breathing. Id. ¶¶ 27–28.
4. Plaintiff's Hospital Treatment
On April 25, two days after the alleged assault, Plaintiff
claims he woke up with severe chest pain and trouble
breathing. Pl.’s SMF ¶ 47. He informed officers he needed
medical attention and was transferred to Alice Hyde Medical
Center by ambulance. Id. ¶¶ 47–50. Plaintiff informed the
medical staff he had been assaulted by corrections officers.
Id. ¶ 54. Plaintiff was diagnosed with two fractured ribs and a
collapsed lung caused by trauma which doctors stated “could
have been fatal.” Id. ¶¶ 53–56.
Plaintiff remained hospitalized until April 27, 2016, when he
was released to the Upstate Correctional Facility (“Upstate”)
where he remained in the infirmary for another week. Id. ¶ 57.
5. Misbehavior Tickets and Investigations
After arriving at Upstate, Plaintiff was issued five
misbehavior tickets. Pl.’s SMF ¶ 59. One ticket, issued by
Hanson and co-signed by Kearney, alleged Plaintiff had made
18 phone calls from April 15, 2016 to April 22, 2016 in
violation of his cube confinement status, and used the phones
in violation of a direct order from Kearney. Id. ¶ 60. This
ticket purported to justify Plaintiff's April 23, 2016, transfer
to the SHU. Id. ¶ 59. Plaintiff denies making any phone calls
or being ordered by Kearney not to use the phones, and was
found not guilty at a hearing regarding this ticket. Id. ¶ 62.
*5 Another ticket was issued by Defendant Sharpe, alleging
that during the strip frisk at the SHU, Plaintiff resisted and
violently struggled. Id. ¶ 63. Plaintiff was found guilty of this
conduct. Id. ¶ 65.
Plaintiff received two tickets written by Mere alleging he
created a disturbance while in the SHU on suicide watch. Id. ¶
66; Mere Reply SMF ¶ 68. Plaintiff was initially found guilty
of creating a disturbance, but this finding was reversed on
appeal. Pl.’s SMF ¶ 69; Mere Reply SMF ¶ 69.
The final ticket was written by Peck, alleging Plaintiff created
a disturbance while in the SHU on suicide watch. Pl.’s SMF
¶ 70, Peck Reply SMF ¶ 70. Plaintiff was found guilty of this
conduct. Pl.’s SMF ¶ 71.
6. Plaintiff's Grievance
On May 13, 2016, Plaintiff submitted a grievance regarding
the alleged assaults, his struggle to obtain medical care, and
the allegedly false tickets filed against him. Pl.’s SMF ¶ 72.
Kingston was tasked with investigating the grievance. Id. ¶
76. Kingston dismissed Plaintiff's allegations, and found the
grievance was baseless and filed only to cause harm to the
officers involved. Id. ¶ 77–80. On August 8, 2016, Plaintiff's
grievance was denied by Superintendent Uhler. Kearney &
Kingston SMF ¶ 41.
However, the DOCCS Office of Special Investigations
(“OSI”) opened an investigation into the use of force event
and Plaintiff's subsequent stay in the SHU. Mere SMF ¶ 58;
Pl.’s SMF ¶ 81. The OSI investigator, Michael Germano,
issued his report on January 3, 2017. See Birchenough
Decl. Exhibit T (“Germano Report”). The Germano Report
questioned the narrative told by staff regarding the assault
and denial of medical care, finding various inconsistencies in
their accounts regarding the nature of Plaintiff's resistance, the
Nurse's evaluation of Plaintiff, their responses to his request
for medical attention, and Plaintiff's physical state after being
put on the 1:1 watch. Pl.’s SMF ¶¶ 82–87. The Germano
Report did not reach a conclusion regarding Plaintiff's assault
allegations, but found that the involved staff failed to give
Plaintiff proper medical care after the use of force incident in
the SHU. Id. ¶ 81.
Defendant Mere asserts that any findings in the Germano
Report are irrelevant as to him because the report did not
identify him as “involved staff,” he was not interviewed or
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questioned, and was not named in the final report. Mere
SMF ¶¶ 58–61. Similarly, Robideau argues that the Germano
Report supports his innocence because it found that he had
“no valuable information to clarify the events documented in
the use of force.” Robideau Reply SMF ¶ 82.
B. Procedural History
Following Plaintiff's filing of his Amended Complaint, and
the Court's partial grant of Defendant Kearney and Kingston's
motions to dismiss, Dkt. No. 100, Plaintiff has the following
claims remaining: excessive force claims against Hanson,
Sharpe, Robideau, Mere, Peck, Kearney, and Kingston under
the Eighth Amendment, Fourth Amendment, and Fourteenth
Amendment; claims for deliberate indifference to a serious
medical need against Hanson, Sharpe, Robideau, Mere, and
Peck under the Eighth Amendment; and retaliation claims
against Hanson, Sharpe, Robideau, Mere, Peck, Kearney,
and Kingston in violation of the First and Fourteenth
Amendments.
*6 Robideau, Mere, Peck, Kearney, and Kingston now
move, respectively, for summary judgment arguing they are
entitled to judgment as a matter of law on all claims against
them. See Robideau Motion, Mere Motion, Peck Motion,
Kearney Motion.
III. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs
courts to grant summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
“material” if it “might affect the outcome of the suit under
the governing law,” and a dispute is “ ‘genuine’ ... if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes
that are irrelevant or unnecessary” will not preclude summary
judgment, “summary judgment will not lie if ... the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.; see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier
of fact could find in favor of the nonmoving party should
summary judgment be granted.”). The party seeking summary
judgment bears the burden of informing the court of the basis
for the motion and identifying those portions of the record
that the moving party claims will demonstrate the absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Similarly, a party is entitled to summary
judgment when the nonmoving party carries the ultimate
burden of proof and has failed “to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial.” Id. at 322.
In attempting to defeat a motion for summary judgment after
the moving party has met its initial burden, the nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
may not rely on mere conclusory allegations, speculation,
or conjecture, Fischer v. Forrest, 968 F.3d 216, 221 (2d
Cir. 2020), and must present more than a mere “scintilla of
evidence” supporting its claims, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). At the same time, a court must
resolve all ambiguities and draw all reasonable inferences in
favor of the nonmoving party. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). Thus, a court's duty
in reviewing a motion for summary judgment is “carefully
limited” to finding genuine disputes of fact, “not to deciding
them.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22
F.3d 1219, 1224 (2d Cir. 1994).
IV. DISCUSSION
A. Robideau Motion for Summary Judgment
Robideau argues there is no material issue of fact regarding
Plaintiff's (1) Eighth Amendment claim for use of excessive
force, (2) Fourth and Fourteenth Amendment claims for use
of excessive force, and (3) claim for retaliation, and asserts
that all claims must be dismissed. See Robideau Mem.
1. Eighth Amendment Excessive Force
The Eighth Amendment protects prisoners from cruel and
unusual punishment by prison officials. Wilson v. Seiter, 501
U.S. 294, 296–97 (1991). To establish an Eighth Amendment
claim, a plaintiff must show both an objective component, “a
deprivation that is objectively, sufficiently serious ... [,]” and
a subjective component requiring the defendant official have
“a sufficiently culpable state of mind.” Hayes v. Dahlke, 976
F.3d 259, 274 (2d Cir. 2020); see also Hudson v. McMillian,
503 U.S. 1, 7 (1992).
*7 Plaintiff alleges that Robideau used excessive force
against him by assaulting him in the back of the van while
he was being transferred to the SHU and then by assaulting
him again while in the SHU strip-frisk room. Pl.’s SMF ¶¶ 11,
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14. Robideau argues there is significant evidence supporting
his claim that he was the driver of the van and that he
did not enter the SHU, and thus could not have assaulted
Plaintiff. Robideau Mem. at 9–12. Robideau argues further
that Plaintiff's self-serving testimony set forth on the record,
absent other direct or circumstantial evidence, is insufficient
to defeat summary judgment. Id.
a. Evidence Supporting Robideau's Version of Events
Robideau argues there is no dispute of material fact that,
rather than being in the back of the van as Plaintiff claims,
he was the driver of the van. He points to the DOCCS Escort
Memorandum forms filled out by Robideau and Hanson that
lists only two officers as having been involved in Plaintiff's
transfer, Robideau SMF ¶ 10; Roberts Decl. Ex. H (“DOCCS
Escort Memorandum”), and the deposition testimony of
fellow defendant Sergeant Hanson, in which he stated that
he (Hanson) was not driving the van, Robideau Reply at
7; Roberts Decl. Exhibit G (“Hanson Deposition”) at 261.
Further, Plaintiff has admitted that the driver of the van did
not assault or speak to him. Pl.’s SMF at 41.
Robideau contends there is likewise significant evidence
supporting his claim that he did not enter the SHU after
dropping Plaintiff off. Robideau Mem. at 10. Robideau points
to the SHU logbook which shows Robideau did not sign into
the SHU building, but that Sergeant Hanson did upon arrival
with Plaintiff, Roberts Decl. Exhibit I (“SHU Log Book”); the
testimonies of Defendants Hanson and Sharpe that they were
the only two officers in the strip-frisk room with Plaintiff that
day, Hanson Dep. at 257, Roberts Decl. Exhibit J (“Sharpe
Deposition”) at 202; and the Germano Report, which found
Robideau did not have any “valuable information to clarify
the events” surrounding the use of force, Germano Report at
3.
Robideau argues that the only pieces of evidence on the
record contradicting his account are Plaintiff's own self-
serving statements made in his grievance, his deposition, and
his declaration in opposition to summary judgment. Robideau
Mem. at 7. Robideau argues his motion for summary
judgment should be granted in spite of this contradictory
evidence because “[i]t is clear in this Circuit that a nonmoving
party's proffer of solely self-serving statements, ‘without
direct or circumstantial evidence to support the charge, is
insufficient to defeat a motion for summary judgment.’ ”
Robideau Reply at 7 (quoting J.F. v. Carmel Cent. Sch. Dist.,
168 F.Supp.3d 609, 616 (S.D.N.Y. 2016)).
b. Sufficiency of Self-Serving
Statements to Defeat Summary Judgment
The Court cannot agree that such clarity exists, and declines
to adopt a blanket rule that a self-serving declarations or
deposition testimony are per-se insufficient to defeat a motion
for summary judgment, even without other evidence to
support them.
Robideau is correct that there is a line of decisions from
courts in the Southern District of New York that appears to
adopt such a rule. See, e.g., Sec. & Exch. Comm'n v. Aly,
2018 WL 1581986, *9 (S.D.N.Y. 2018); J.F., 168 F.Supp.3d
at 616; Fincher v. Depository Trust & Clearing Corp., No.
06-CV-9959, 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17,
2008). The provenance of the rule issued in these decisions
can be traced back to the Second Circuit's opinion in Argus,
Inc. v. Eastman Kodak Co., where the court held that, in
the context of establishing a causal link between a breach of
antitrust law and harm to a plaintiff-competitor, “when the
fact of injury is in issue, the ‘isolated self-serving statements’
of a plaintiff's corporate officers may not provide substantial
evidence upon which a jury can rely.” 801 F.2d 38, 42 (2d Cir.
1986). However, in applying this standard to find no genuine
issue of material fact regarding causation of injury, the Argus
court refused to allow such statements to defeat summary
judgment, not because of their nature as self-serving, but
because the testimony was inherently “conclusory” and thus
“[fell] woefully short of that necessary to outweigh the
volume of contrary facts in the record.” Id. at 45.
*8 Robideau makes much of the Second Circuit's
affirmation of one of the Southern District cases utilizing
this rule: Fincher v. Depository Trust. However, even
though the Second Circuit eventually affirmed the district
court's ruling in Fincher, it disagreed with the district
court's decision to use the above-described rule to discredit
the plaintiff's testimony at the summary judgment stage
because the plaintiff's statements were not conclusory or
speculative. See Fincher v. Depository Tr. & Clearing Corp.,
604 F.3d 712, 726 (2d Cir. 2010) (“Fincher's testimony ...
is not conclusory or speculative, as was the plaintiff's
testimony in the case relied upon by the district court
in disregarding the remarks, ... we decline to conclude
at this stage of the proceedings that Fincher's testimony
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may be deemed discredited.”). The Fincher court eventually
affirmed the grant of summary judgment, not because the
plaintiff's testimony at issue was self-serving, but because it
concerned statements made by a third-party who concluded
the plaintiff had been discriminated against, and the alleged
statements represented a mere “scintilla” of evidence “in
light of their offhand, conclusory nature and the lack
of further support in the record for Fincher's claim [of
discrimination].” Id. at 727. However, the court stated that,
if the plaintiff had testified that the third-party had made
remarks that themselves were discriminatory, rather than
merely conceding in conclusory fashion that plaintiff had
been discriminated against, “[s]ummary judgment might not
have been justified.” Id. Heavily implying the Second Circuit
would consider such self-serving testimony to be sufficient to
defeat summary judgment.
In short, the Second Circuit—rather than holding that a self-
serving statement is per se insufficient absent other supporting
evidence—has reiterated the traditional standard that when
ruling on summary judgment “[the] preliminary question for
the judge [is] not whether there is literally no evidence,
but whether there is any upon which a jury could properly
proceed to find a verdict for the party producing it,” id.
at 726 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251 (1986)), and that “[m]ere conclusory allegations,
speculation or conjecture” are insufficient to resist summary
judgment, Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir.
1996). While it may be true that in some cases a party's self-
serving affidavit or testimony, unsupported by other evidence
on the record, will be insufficient to allow a reasonable jury
to properly find a verdict in that party's favor, there are other
circumstances where it may very well be sufficient.
c. Plaintiff's Record Testimony and Statements
are Sufficient to Defeat Summary Judgment
Plaintiff's allegations regarding the alleged assaults by
Robideau are not conclusory or speculative, rather, they
testify to events that allegedly happened in Plaintiff's
presence that he observed directly. See Fincher, 604 F.3d
at 726 (“Fincher's testimony ... is not conclusory or
speculative ... because Fincher was testifying to the content
of a conversation at which she was allegedly present.”). Thus,
the Court must determine if Plaintiff's repeated testimonial
statements that Robideau assaulted him in the back of the
van on the way to the SHU and assaulted him again in the
SHU strip-frisk room represent a mere “scintilla” of evidence,
insufficient to create an issue of material fact.
The Court finds the weight of evidence is not so great
that no rational jury could credit Plaintiff's testimony and
find in his favor. Robideau contends that there is “extensive
documentary and testimonial discovery establishing that
Robideau was the driver of the van.” Robideau Mem. at 10.
The only documentary evidence Robideau points to is the
Escort Memorandum listing Robideau and Hanson as having
been in the van during the transport. Escort Memorandum
at 1. However, this memorandum is not purely objective
evidence, but rather was created and signed by Robideau and
Hanson themselves. Hanson Dep. at 258. Robideau further
relies on Hanson's testimony that Hanson was not the one
driving the van, thus implying that since there were only two
officers in the van according to the Escort Memorandum, the
driver must have been Robideau. Robideau Mem. at 10. While
Hanson did testify that he does not generally drive the vans,
Hanson Dep. at 261, he explicitly stated that he did “not have
an independent recollection” of transferring Plaintiff to the
SHU, and when asked if he drove the van on that specific day,
Hanson responded “not that I recall,” id. at 259. Given the
nature of this evidence, a reasonable jury could still choose
to credit Plaintiff's account that Robideau was not the driver
of the van, but was present in back of the van and assaulted
him during the trip. 3
3 Robideau also argues for the first time in his reply
papers that “[d]riving the van is an exclusive duty
of the Rounds 1 position, or of the Rounds 2
position if Rounds 1 is unavailable” and “Robideau
without dispute was the only available Rounds
person to drive the van at the time of Lewis’
transfer because his partner, the Rounds 2, was
not available.” Robideau Reply Mem. at 3. The
Court will disregard these arguments and alleged
facts because, as they were not included in
Robideau's initial motion, Plaintiff has not had a
chance to appropriately respond. See In re Various
Grand Jury Subpoenas, 235 F. Supp. 3d 472, 485
(S.D.N.Y. 2017) (“The law in the Second Circuit is
clear that arguments or requests for relief raised for
the first time in reply briefs need not be considered.
Generally, a court does not consider issues raised
in a reply brief for the first time because if a party
raises a new argument in a reply brief the opposing
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party may not have an adequate opportunity to
respond to it.”) (citations omitted).
*9 Regarding the alleged assault in the SHU, Robideau
asserts he did not enter the SHU at all and points to (1) the
fact that he did not sign the SHU Logbook “when Sergeant
Hanson did so upon arrival with Plaintiff,” Robideau Mem.
at 11 (citing SHU Logbook at 1), (2) Hanson and Sharpe's
testimony that no other officers were present in the SHU strip-
frisk room during the use of force event with Plaintiffs, id.;
Hanson Dep. at 257; Sharpe Dep. at 201–02, and (3) the
Germano Report's indication that “Robideau did not have any
‘valuable information to clarify the events’ documented in the
use of force,” id. (citing Germano Report at 3). 4
4 For the first time in his reply, Robideau makes
the argument that he has conclusively established
he was not in the SHU strip-frisk room during
the assault because Nurse Harmon testified there
were only two officers present in the room, and
that Robideau had to find his partner for their
assignment at 3:30 P.M. Robideau Reply Mem. at
4, 7. Because these alleged facts and arguments
are presented for the first time in Robideau's
reply memorandum, and Plaintiff has not had
an appropriate chance to respond, the Court will
disregard them. See supra note 2.
This evidence is similarly not as conclusive as Robideau
argues. The SHU Logbook entry for Plaintiff's admission
has a designated place for the “escorting supervisor” to sign,
but no obvious place where Robideau, who was indicated
to be the “escorting officer” would have signed. See SHU
Logbook at 1; Escort Memorandum. Robideau has not
argued or established that it would have been improbable,
or even difficult, for him to enter the SHU without having
signed. Indeed, the record indicates other individuals were
able to enter and leave the SHU multiple times without
signing the logbook. Germano Report at 3. In short, a
reasonable jury could find other explanations for Robideau's
lack of signature. Further, the conclusion in the Germano
report that Robideau did not have relevant information was
based on Robideau's own testimony. Germano Report at 3.
Given the repeated consistent statements Plaintiff has made
regarding the assault in the SHU, Birchenough Decl. Ex. N
(“Plaintiff's Grievance”) at 3; Plaintiff's Dep. at 122:6–11, a
reasonable jury could choose to credit Plaintiff's testimony
over Robideau's, Sharpe's, and Hanson's.
Robideau argues that Plaintiff's testimony should be
discredited because he claimed to see Robideau behind him
in the strip-frisk room with his “peripheral visions” and one
cannot see behind themself with peripheral vision. Robideau
Mem. at 11. Robideau further argues that Sharpe and Hanson's
statements “should be given significant weight” because
they admit they were the only ones in the strip-frisk room
during the use of force, “and there is no reason for them to
be untruthful about who else was in the SHU frisk area.”
Id. Robideau's arguments may hold merit, however such
weighing of testimony and determination of credibility is not
within in the purview of a court on a motion for summary
judgment. See Redd v. N.Y. State Div. of Parole, 678 F.3d 166,
174 (2d Cir. 2012) (“Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge.”),
While the weight of evidence may favor Robideau, the
evidence is not so conclusive that a reasonable jury could
not believe Plaintiff's assertions that Robideau was in the
back of the transfer van and in the SHU strip-frisk room
and participated in the assaults. See Franklin v. Oneida
Corr. Facility, No. 03-CV-1452, 2008 WL 2690243, at *9
(N.D.N.Y. July 1, 2008) (Kahn, J) (“As tempting as it may
be to conclude that defendants will ultimately prevail at trial,
defendants’ invitation to make a credibility determination and
reject plaintiff's version of the events on motion for summary
judgment is plainly unwarranted”); Cicio v. Lamora, No. 08-
CV-431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010),
report and recommendation adopted, No. 08-CV-431, 2010
WL 1063864 (N.D.N.Y. Mar. 22, 2010) (“Plaintiff's testimony
that he was beaten by MacWilliams stands in contrast to
the seemingly overwhelming evidence that it did not occur
as he alleges. Nonetheless, the weighing of such competing
evidence, no matter how weak plaintiff's claim may appear,
presents a question of credibility that must be left to the
trier of fact”); see also Harris v. Miller, 818 F.3d 49, 65
(2d Cir. 2016) (holding summary judgment is inappropriate
where “a prisoner's allegations and evidentiary proffers could
reasonably, if credited, allow a rational factfinder to find that
corrections officers used force maliciously and sadistically ...
[even where] the proof of excessive force [is] weak.”).
*10 The Court thus declines to grant Robideau's motion for
summary judgment regarding Plaintiff's Eighth Amendment
claim of excessive force.
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2. Fourth and Fourteenth Amendment
Excessive Force Claims Against Robideau
Plaintiff does not oppose Robideau's motion regarding his
claims for excessive force under the Fourth and Fourteenth
Amendments. See Pl.’s Resp. Mem. at 14. Thus, the Court
grants Robideau's motion regarding these claims.
3. Eighth Amendment Deliberate Indifference to
Serious Medical need Claim against Robideau
Plaintiff likewise does not oppose Robideau's motion
regarding his claim for deliberate indifference to a serious
medical need under the Eighth Amendment. Id. Thus, the
Court grants Robideau's motion regarding this claim.
4. First Amendment Retaliation Claim Against Robideau
Robideau argues that Plaintiff's claims against him alleging
retaliation should be dismissed, first, because Plaintiff did
not appropriately exhaust his administrative remedies, and
second, because there is no dispute as to material fact
regarding whether Robideau engaged in retaliatory activities.
a. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 (“PLRA”) states
that “[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). This
exhaustion requirement “applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). “ ‘Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules’ as a
precondition to filing a federal lawsuit.” Espinal v. Goord,
558 F.3d 119, 124 (2d Cir. 2009) (quoting Woodford v. Ngo,
548 U.S. 81, 90 (2006)). Likewise, “compliance with state
procedural rules is necessary to achieve ‘[t]he benefits of
exhaustion [that] can be realized only if the prison grievance
system is given a fair opportunity to consider the grievance.’
” Id. “The level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to
system and claim to claim,’ because ‘it is the prison's
requirements, and not the PLRA, that define the boundaries
of proper exhaustion.’ ” Id. (quoting Jones v. Bock, 549 U.S.
199, 218 (2007)).
Robideau asserts that New York State grievance procedures
require an inmate to “allege facts sufficient to put corrections
officials on notice as ‘to the nature of the claim,’ and ‘provide
enough information about the conduct’ at issue.” Robideau
Mem. at 14. Robideau argues that because “[Plaintiff] failed
to file a grievance with particularity that implicated Robideau
in any retaliatory acts towards Lewis” he has not sufficiently
exhausted his administrative remedies as to the retaliation
claim against Robideau. See id. at 15.
However, Plaintiff's Grievance alleges involvement of
specific officers, including Robideau, Pl.’s Grievance at 2–
3, and that he was beaten for retaliatory reasons, id. at 18
(“This is a case where I was severely beaten ... in retaliation
for filing a lawsuit against correction officer B. Cowan.”).
Plaintiff's Grievance also provides a detailed account of the
events, including a specific date, time, and location. Plaintiff's
Grievance at 13–15.
*11 Thus, Plaintiff's Grievance provided prison officials
with the “the necessary information to investigate the
complaints and the opportunity to learn which officers were
involved in the alleged incident” sufficient to advance the
benefits of exhaustion, and the Court finds Plaintiff has
exhausted his administrative remedies regarding the claim of
retaliation against Robideau. See Espinal, 558 F.3d at 127
(finding administrative remedies properly exhausted where
grievance alleged involvement of certain security officers
and “included the specific date, time, and location of the
incident about which he complained, and that he was beaten
for retaliatory reasons.”).
b. Robideau's Alleged Retaliatory Acts
In order to succeed on a claim of retaliation in violation of the
First Amendment, a plaintiff must show “(1) the conduct cited
as the cause for retaliation is protected; (2) the defendant took
adverse action against the plaintiff; and (3) there was a causal
connection between the protected conduct and the adverse
action.” Davis v. Goord, 320 F.3d 346, 325 (2d Cir. 2003); see
also Gill v. Pidlypchak, 389 F.3d 379 (2d Cir. 2004).
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It is undisputed that filing a civil lawsuit is activity protected
by the First Amendment. Beechwood Restorative Care Ctr.
v. Leeds, 436 F.3d 147, 152 (2d Cir. 2006) (“[L]awsuits
are protected speech.”); see also Houston v. Zen Zen, 388
F.Supp.2d 172, 174 (W.D.N.Y. 2005).
An action is considered to be adverse if it “would deter
a similarly situated individual of ordinary firmness from
exercising ... constitutional rights.” Tafari v. McCarthy, 714
F.Supp.2d 317, 348 (N.D.N.Y. 2010). Robideau argues that
there is no material dispute of fact that he did not take
any adverse action against Plaintiff because he was driving
the van and did not enter the SHU. Robideau Mem. at 18.
Robideau essentially reiterates his argument above, stating
that documentary and testimonial evidence establishes his
non-involvement, and the Court should disregard evidence
to the contrary because it consists of “unsupported, self-
serving statements that have not been corroborated.” Id.
However, as above, the Court finds that a reasonable jury
could choose to credit Plaintiff's statements that Robideau
assaulted him in the back of the transfer van and in the
SHU. See supra Section IV(A)(1). It cannot be disputed that a
physical assault on a handcuffed prisoner of the type alleged
by Plaintiff would deter an individual of ordinary firmness
from exercising constitutional rights. See Baskerville v. Blot,
224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (“[Plaintiff's]
claim regarding the retaliatory assault sufficiently describes
adverse conduct that would deter a reasonable inmate from
exercising his constitutional rights.”); Flemming v. King, No.
14-CV-316, 2016 WL 5219995, at *5 (N.D.N.Y. June 20,
2016) (“[A] physical assault constitutes adverse action.”),
report and recommendation adopted, No. 14-CV-0316, 2016
WL 5173282 (N.D.N.Y. Sept. 21, 2016).
Thus, there is a material dispute of fact as to whether
Robideau undertook an adverse action.
Robideau further argues that, even if it is accepted that he
participated in the assaults, there is insufficient evidence on
the record to establish a causal connection between Plaintiff's
filing of the Cowan Suit and the assaults. Robideau Mem. at
16.
In determining whether a causal connection exists between a
plaintiff's protected activity and a prison official's actions, a
court may consider several factors including “(i) the temporal
proximity between the protected activity and the alleged
retaliatory act; (ii) the inmate's prior good disciplinary record;
(iii) vindication at a hearing on the matter; and (iv) statements
by the defendant concerning his motivation.” 5 Baskerville v.
Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon
v. Coughlin, 58 F.3d 865, 872–73 (2d Cir. 1995)).
5 The court notes that factors (ii) and (iii) are
generally employed when an inmate claims a prison
disciplinary or administrative action is taken in
retaliation, see, e.g., Faulk v. Fisher, 545 F. App'x
56, 59 (2d Cir. 2013); Morris v. Rabsatt, 2012 WL
976035, at *7 (N.D.N.Y. 2012), and are of dubious
relevance when an inmate claims security officers
have physically assaulted him.
*12 Notwithstanding the first three factors, the Court finds
that alleged statements made by Robideau are sufficient for
a reasonable jury to conclude the assaults were connected to
the Cowan suit.
Plaintiff claims that while assaulting him in the back of the
van, Robideau stated “our buddy wants us to give you the
special treatment,” Pl.’s Grievance at 13, and that during the
alleged attack in the SHU, one officer stated “our buddy wants
us to give a nigger like you the special treatment” and “this
nigger gets the special treatment because he filed a lawsuit
against one of our brothers,” id. at 14. Robideau claims
he does not know Officer Cowan and did not make these
statements, and a jury could choose to disbelieve Plaintiff's
claims, but they are sufficient to create a material issue of fact
regarding Robideau's retaliatory motive. See Colon, 58 F.3d
at 873 (reversing grant of summary judgment where prisoner
presented direct evidence of causal connection in the form
of an alleged admission of retaliatory motive by defendant
prison official, despite defendant's denial on the record of ever
making the statement.)
Therefore, the Court finds there are issues of material fact
regarding whether Robideau retaliated against Plaintiff for
exercising his First Amendment rights and denies Robideau's
motion for summary judgment on this claim.
B. Mere Motion for Summary Judgment
Mere argues he is entitled to summary judgment on (1)
Plaintiff's claim for use of excessive force, (2) Plaintiff's
claim for deliberate indifference to a serious medical need in
violation of the Eighth Amendment, and (3) Plaintiff's claim
of retaliation in violation of the First Amendment. See Mere
Mem. at 1. Mere also argues that he is entitled to qualified
immunity. Id.
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1. Eighth Amendment Excessive Force
Under 42 U.S.C. § 1983 as to Mere
“It is well settled in this Circuit that ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ” Brandon
v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019) (quoting Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Mere alleges it is “undisputed” that he was not personally
involved in the assaults on Plaintiff, because the record
establishes that he was in the gym when Plaintiff was
allegedly assaulted in the SHU. 6 Mere Mem. at 7–9. To
support this claim, Mere points to (1) his own deposition
testimony as well as that of Defendants Hanson and Sharpe
which each claim that only Hanson and Sharpe were in
the SHU room when the use-of-force event occurred, id.
at 8; Mere Dep. at 55; Hanson Dep. at 91–92; Sharpe
Dep. at 122–123; (2) Birchenough Decl. Ex. I (“Use of
Force Report”), Birchenough Decl. Ex. H (“Unusual Incident
Memorandum”), Birchenough Decl. Ex. K (“Sharpe Inmate
Misbehavior Report”), and the Germano Report, which
each show that the use-of-force event occurred around 3:10
P.M. on April 23, 2016; (3) Mere's deposition testimony,
declaration, and the DOCCS Staff Planning Grid from April
23, 2016 purportedly establishing that Mere was in the gym
at 3:10 P.M. that day, Mere Dep. at 51, Mere Decl. Ex. A
(“DOCCS Staff Planning Grid”); and (4) the fact that the
Germano Report created after the OSI investigation did not
identify Mere as “involved staff” or present during the use-
of-force event. See Germano Report. Mere also contends
that Plaintiff's Amended Complaint does not allege he was
involved in the use-of-force event in the SHU, and that
Plaintiff's Grievance likewise does not state Mere was in the
SHU room during the assault and only mentions him for the
first time after Plaintiff was placed in his SHU cell. Mere
Mem. at 7–8.
6 It is undisputed that Mere was not present in the
van during the alleged assault on Plaintiff during
his transfer to the SHU. Pl.’s SMF at 18.
*13 However, contrary to Mere's assertions, Mere's non-
presence in the SHU during the assault is explicitly disputed
on the record. Plaintiff testified several times during his
deposition that Mere was present in the SHU strip-frisk room
during the assault, along with Robideau, Sharpe, Hanson and
another unidentified officer, and that all the officers present
assaulted him:
Q. Okay. Was Officer Mere one of the individuals who
assaulted you once you got to the SHU to the strip frisk
room?
A. I believe he was.
Q. I'm sorry?
A. I believe he was because he was in the room with them.
Q. He was in the strip frisk room?
A. Yes.
...
Q. Okay. Was he one of the ones that assaulted you?
A. All of them assaulted me.
Pl. Dep. at 199–200; see also id. at 204, 223, 224. Likewise,
in Plaintiff's Declaration, Plaintiff alleges that Mere assaulted
him in the SHU. Pl.’s Decl. at 13–19.
The question then is whether this testimony is sufficient to
create an issue of material fact, or whether it is nothing
more than a mere scintilla of evidence. The Court find
that Plaintiff's testimony is sufficient to withstand summary
judgment.
Mere appears to argue that Plaintiff's Grievance contradicts
his later statements that Mere participated in the SHU assault
because the grievance does not name Mere specifically until
Plaintiff describes events that occurred while he was in the
SHU cell. Mere Mem. at 8.
Where a plaintiff “relies almost exclusively on his own
testimony, much of which is contradictory and incomplete[,]”
and the account is so contradictory that “no reasonable person
could believe [it],” summary judgment may be appropriate.
Jeffreys v. City of N.Y., 426 F.3d 549, 554–55 (2d Cir. 2005).
It is true that Plaintiff's Grievance does not name Mere as
one of the officers present in the SHU strip-frisk room and
that Plaintiff relies almost exclusively on his own testimony
to establish Mere's presence there. However, the Court does
not find that the grievance inherently contradicts Plaintiff's
later statements regarding Mere's participation. The grievance
states there were several officers in the strip-frisk room during
the assault and that “all the officers in the room started kicking
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and punching.” Pl.’s Grievance at 3. The Court does not
find this statement, or the allegations in Plaintiff's Complaint,
so contradictory that no reasonable person could believe
Plaintiff's account.
Further, much of Mere's argument relies on the Staff Planning
Grid to establish that it was “physically impossible” for him
to be in the SHU at the time of the use-of-force event, as
well as on the testimony of other officers and the Germano
Report. Mere Mem. at 8. However, an assignment to a specific
area does not conclusively establish that Mere was physically
present in that area at the specified time. And a reasonable
jury could choose to believe Plaintiff's account over the
Staff Planning Grid, the defendant officers’ testimonies, and
the Germano Report, which was itself largely based on the
parties’ statements. Germano Report at 1–4.
While the weight of the evidence may favor Mere, a
reasonable juror could credit Plaintiff's account, and the
weighing of conflicting evidence is more properly left to
the jury. Telesford v. Tamer, No. 14-CV-1209, 2016 WL
11480163, at *4 (N.D.N.Y. Aug. 31, 2016) (“Resolving the
discrepancy between the parties’ competing evidence would
require the court to undertake a credibility determination that
is not appropriate on summary judgment.”). Thus, the Court
denies Mere's request for summary judgment as to Plaintiff's
Eighth Amendment excessive force claim.
2. Eighth Amendment Medical Indifference as to Mere
*14 To establish an Eighth Amendment violation due
to medical indifference, an inmate must prove “deliberate
indifference to [his] serious medical needs.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citing Estelle
v. Gamble, 429 U.S. 97, 104 (1976)). The deliberate
indifference requirement has both an objective and subjective
prong. St. Clair Jones v. Lamont, 379 Fed. Appx. 58, 59 (2d
Cir. 2010). Mere only argues that Plaintiff has not satisfied
the subjective prong. See Mere Mem. at 9–12.
The subjective prong requires that a defendant prison official
act with a sufficiently culpable state of mind. They must
“know[ ] of and disregard[ ] an excessive risk to inmate
health or safety.” Hill v. Curcione, 657 F.3d 116, 122 (2d
Cir. 2011) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). In other words, they must “act[ ] or fail[ ] to act ‘while
actually aware of a substantial risk that serious inmate harm
will result.’ ” Acosta v. Thomas, 837 Fed. Appx. 32 (2d Cir.
2020) (quoting Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006)).
Mere argues that the record establishes he was not aware
of the use-of-force event in the SHU, and thus had no
knowledge of any excessive risk of injury, and that Plaintiff
only requested his inhaler once, after which it was promptly
provided to him—therefore, Mere did not act indifferently.
Mere Mem. at 11–12.
However, as noted above, a reasonable jury could choose to
credit Plaintiff's account of events, and that account relates
a considerably different story. Plaintiff alleged on the record
that Mere was not only aware of the use of force in the
SHU, wherein five officer allegedly “beat[ ] up and kick[ed]”
Plaintiff while on the ground, but participated as well. Pl.’s
Dep. at 199:25–201:5. Shortly after the alleged attack, when
Plaintiff had been placed in his SHU cell, Plaintiff claims
he informed Mere that he could not breathe and feared
he was having an asthma attack. Id. at 209:3–209:8; Pl.’s
Decl. ¶ 28. A reasonable jury could conclude that knowledge
of a brutal assault on Plaintiff combined with Plaintiff's
statements shortly afterward that he couldn't breathe put Mere
on notice of an excessive risk to Plaintiff's health. Baumann
v. Walsh, 36 F. Supp. 2d 508, 513 (N.D.N.Y. 1999) (“[I]f [the
defendants] were aware of [p]laintiff's injuries and subsequent
pain at the time those injuries occurred, yet failed to provide
access to necessary medical care or treatment, then an Eighth
Amendment violation would be established despite the fact
that medical treatment was later received.”).
Likewise, a dispute as to material fact exists regarding
whether Mere reacted with indifference to this excessive risk.
While Mere claims Plaintiff was given his inhaler “within a
reasonable time” after allegedly saying he couldn't breathe,
Mere Mem. at 11–12, the record evidence Mere references to
support his argument that this fact is undisputed instead shows
the opposite. Mere cites to Plaintiff's deposition testimony,
yet in that testimony, Plaintiff states that when he informed
Mere he needed his inhaler, Mere said he would “look into
it” but never provided assistance, and Plaintiff did not get his
inhaler until hours after asking Mere (and then only when a
different officer arrived). Pl.’s Dep. at 209:3–209:8, 215:9–
215:16. Mere also cites the Germano Report, which states
that Plaintiff attempted to gain the attention of “the officer
assigned to the watch” but he was met with “negative results”
and did not get his inhaler until “approximately one hour
later.” Germano Report at 1. The Germano Report also found
that “[Plaintiff] made several complaints of rib pain and
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difficulty breathing immediately following the incident” and
“involved staff failed to give [Plaintiff] proper medical care
immediately after the Use of Force occurred and the following
day.” Id. at 1, 4.
*15 Indeed, Mere's alleged failure to provide assistance to
an inmate struggling to breathe, shortly after participating
in a violent assault on that inmate, could reasonably be
inferred to be, not only indifference to a serious medical
need, but an intentional delay in access to medical care.
See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (finding
deliberate indifference to serious medical need standard met
where “prison guards ... intentionally deny[ ] or delay[ ]
access to medical care.”); Archer v. Dutcher, 733 F.2d 14,
16 (2d Cir. 1984) (denying summary judgment on claim
for medical indifference where some evidence suggested
defendants delayed emergency medical aid).
Because there are disputes as to material facts regarding
whether Mere was aware of an excessive risk to Plaintiff's
health, and whether Mere acted with deliberate indifference
to that risk, the Court denies Mere's motion for summary
judgment as to Plaintiff's claim for deliberate indifference to
a severe medical need.
3. Retaliation as to Mere
As stated above, to succeed on a claim of retaliation in
violation of the First Amendment, a plaintiff must show “(1)
the conduct cited as the cause for retaliation is protected; (2)
the defendant took adverse action against the plaintiff; and (3)
there was a causal connection between the protected conduct
and the adverse action.” Davis v. Goord, 320 F.3d 346, 325
(2d Cir. 2003); see also Gill v. Pidlypchak, 389 F.3d 379 (2d
Cir. 2004).
It is undisputed that the filing of a lawsuit constitutes
protected conduct. See Mere Mem. at 16. Mere instead argues
that his conduct does not constitute an adverse action and
there was no causal connection between the alleged conduct
and the protected activity. See id. at 16–18.
Plaintiff alleges three actions that could constitute retaliation
by Mere: Mere's alleged participation in the assault in the
SHU strip-frisk room, Mere's denial of adequate medical care,
and Mere's issuance of misbehavior reports.
a. SHU Strip-Frisk Assault
The Court has already determined that issues of material
fact exist regarding whether Mere participated in the alleged
assault in the SHU strip-frisk room. See supra Section IV(B)
(1). Similar to the assault allegedly perpetrated by Robideau,
the physical assault allegedly perpetrated by Mere is sufficient
to constitute an adverse action that would deter a similarly
situated individual of ordinary firmness from exercising
constitutional rights. See Baskerville v, 224 F. Supp. 2d at
732.
Mere argues that Plaintiff “offers only conclusory evidence”
to support his claim of a causal connection between Mere's
alleged actions and the Cowan Suit. See Mere Mem. at
14. While much of the evidence presented by Plaintiff
regarding Defendants’ knowledge of the Cowan suit is indeed
conclusory or speculative, Plaintiff has also provided direct
evidence of a causal link. A reasonable factfinder could
credit Plaintiff's account that an officer stated during the
assault in the strip-frisk room that they wanted Plaintiff
to receive “special treatment because he filed a lawsuit
against one of our brothers,” Pl.’s Dep at 187:24–188:5;
200:8–200:17, and that Mere participated in that assault.
If believed, this is sufficient to create an inference of
causation between the protected activity and the alleged
assault, even if it is not conclusively established that Mere
himself is the one who made the statement. See Roland v.
McMonagle, No. 12-CV-6331, 2015 WL 5918179, at *5–
6 (S.D.N.Y. Oct. 9, 2015) (finding summary judgment on
retaliation claim unwarranted where evidence supported an
“inference of causation” between filing of grievances and
assault by multiple corrections officers because one had
“mocked [plaintiff] for filing a grievance during the alleged
attack”).
b. Denial of Adequate Medical Care
*16 A denial of medical care in the face of great pain or
need, as is alleged by Plaintiff and supported on the record,
constitutes an adverse action sufficient to establish a claim
for retaliation. See Abreu v. Lipka, 778 F. App'x 28, 33 (2d
Cir. 2019) (“[W]ithholding of medication could constitute
sufficiently adverse actions that would deter a prisoner of
‘ordinary firmness’ from exercising his rights.”).
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As stated above, a reasonable factfinder could find that
Mere's alleged assault was motivated by Plaintiff's filing
of a suit against Cowan. Given that Plaintiff’ Grievance
states the denial of medical care initially occurred only thirty
minutes to an hour after Mere supposedly took part in an
assault on Plaintiff, Pl.’s Grievance at 6, which itself was
allegedly explicitly undertaken in retaliation for the filing of
the Cowan suit, see Pl.’s Dep at 187:24–188:5; 200:8–200:17,
a factfinder could reasonably infer that this adverse-action
was similarly motivated. Roland, 2015 WL 5918179, at *5–
6 (“[S]ummary judgment is unwarranted if the evidence can
support an inference of causation.”).
c. Issuance of Misbehavior Tickets
However, the Court finds that Mere's issuance of misbehavior
tickets does not constitute an adverse action sufficient to
deter a person of ordinary firmness from exercising his rights
because the tickets were eventually dismissed and Plaintiff
never suffered adverse consequences or repercussions. See
Birchenough Decl. Ex. O–Q; compare Berry v. Tremblay,
No. 20-CV-177, 2021 WL 1575951, at *4 (N.D.N.Y. Apr.
22, 2021) (“Courts in this district have routinely found the
mere filing of a misbehavior report alone, without evidence of
other repercussions, does not constitute an adverse action.”)
(collecting cases), with Hayes v. Dahlke, 976 F.3d 259, 272–
74 (2d Cir. 2020) (finding filing of false misbehavior report
constituted adverse action where inmate-plaintiff spent time
in keeplock as a result), and Gill v. Pidlypchak, 389 F.3d
379, 384 (2d Cir. 2004) (finding adverse action where inmate-
plaintiff spent three weeks in keeplock as a result of false
misbehavior report.).
Plaintiff argues that he did suffer consequences because,
while the misbehavior reports were eventually dismissed, he
was initially found guilty and had to appeal the charges. See
Pl.’s Resp. Mem. at 35. However, Plaintiff does not present
any specific consequences or repercussions he faced as a
result of the initial guilty finding or as a result of engaging in
the appeals process. See id.
Therefore, the Court denies Mere's motion for summary
judgment as to retaliation arising from Mere's alleged use of
force in the SHU strip-search room and Mere's alleged denial
of adequate medical care, but grants summary judgment as
to retaliation arising from Mere's issuance of misbehavior
reports.
4. Qualified Immunity as to Mere
In order to establish a defense of qualified immunity, a
defendant public official must show that one of two conditions
is satisfied, either “(a) the defendant's action did not violate
clearly established law, or (b) it was objectively reasonable
for the defendant to believe that his action did not violate such
law.” Gorman v. Rensselaer Cty., 910 F.3d 40, 45 (2d Cir.
2018); see also Green v. Montgomery, 219 F.3d 52, 59 (2d Cir.
2000). “The objective reasonableness test is met if ‘officers
of reasonable competence could disagree’ on the legality of
the defendant's actions.” Green, 219 F.3d at 59 (quoting Salim
v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996)). Summary judgment
should not be granted on the basis of qualified immunity due
to objective reasonableness “unless the defendant shows that
no reasonable jury, viewing the evidence in the light most
favorable to the Plaintiff, could conclude that the defendant's
actions were objectively unreasonable in light of clearly
established law.” Husain v. Springer, 494 F.3d 108, 131 (2d
Cir. 2007).
*17 Mere does not argue that his actions did not violate
clearly established law. See Mere Mem. at 18–20. He instead
claims that his actions were objectively reasonable and he is
thus entitled to qualified immunity as to the claims against
him derived from his alleged use of excessive force and denial
of adequate medical care. Id. 7
7 Mere also argues he is entitled to qualified
immunity as to any claims arising from his issuance
of misbehavior tickets. See Mere Mem. at 20.
However, because the Court has already granted
summary judgment for these claims, the Court will
not address this argument.
Regarding the claims of excessive force and retaliation
stemming from the alleged assault in the SHU strip-frisk
room, Mere argues he is entitled to qualified immunity
because he “was not present during the Use of Force Event ...
and therefore it was objectively reasonable that Officer Mere
did not intervene in a Use of Force Event of which he had
no knowledge.” Id. at 18. However, Mere's presence and
participation in the strip-frisk room assault is a contested
and material issue of fact. Construing the record in the light
most favorable to Plaintiff, a jury could reasonably credit
Plaintiff's testimony that Mere participated in the assault and
thus reasonably find that it was not objectively reasonable
for Mere to believe his actions did not violate Plaintiff's
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Eighth Amendment rights. See Jeanty v. Cty. of Orange, 379
F. Supp. 2d 533, 542 (S.D.N.Y. 2005) (denying summary
judgment where plaintiff's testimony created factual dispute
regarding defendants’ use of excessive force, thus “jury could
reasonably conclude that it was not objectively reasonable
for the individual defendants to believe that their actions did
not violate plaintiff's Eighth Amendment rights.”); Brewer v.
Kamas, 533 F. Supp. 2d 318, 331 (W.D.N.Y. 2008) (finding,
where plaintiff alleged corrections officer used excessive
force, that “if the facts as alleged by Plaintiff are established
at trial, no reasonable corrections officer could reasonably
believe he was not violating Plaintiff's constitutional rights.”).
Mere also argues he is entitled to qualified immunity
regarding claims of deliberate indifference to a serious
medical need and retaliation stemming from his alleged
failure to provide Plaintiff with his inhaler while on the
1:1 suicide watch. See Mere Mem. at 19. Mere asserts it
was objectively reasonable for him to not leave his post to
personally retrieve the inhaler and that “any reasonable officer
similarly assigned to a one-on-one watch would engage the
use of other DOCCS officers such as the SHU Roundsmen ...
and would rely upon their assistance to alert medical staff.” Id.
However, construing the evidence in the light most favorable
to Plaintiff, Mere's assertions are heavily disputed. Plaintiff
asserts that Mere participated in a vicious assault upon him in
the SHU and thus knew he had been severely beaten. Pl.’s Dep
at 200:8–200:17. Shortly after, Plaintiff claims he informed
Mere he could not breathe, thought he was having an asthma
attack, and needed his inhaler. Pl.’s Grievance at 6. Rather
than contacting other officers to get medical aid, as Mere
claims he did, Plaintiff asserts that Mere simply said he would
“look into” it, walked away, and never provided any sort of
assistance. Id. at 6–7; Germano Report at 1; Pl.’s Dep. at
209:3–209:8. Plaintiff claims he did not receive his inhaler
until hours later, when he was able to contact another officer.
Pl.’s Dep. at 215:11–215:16.
*18 Again, the test for objective reasonableness is met
“if officers of reasonable competence could disagree on the
legality of the defendant's actions.” Green, 219 F.3d at 59
(quotation marks omitted). Tellingly, Mere states that “any
reasonable officer” in his position would have engaged the
use of other officers to alert medical staff. Mere Mem. at 19
(emphasis added). Thus, Mere implies that if an officer acted
as Plaintiff asserts, and never alerted medical staff or sought
assistance, no officer of reasonable competence would agree
that it was legal or proper.
A reasonable jury could credit Plaintiff's account and find it
was not objectively reasonable for Mere to believe denying
an inhaler to an inmate who had stated he couldn't breathe,
especially after participating in an assault on that inmate,
did not violate Plaintiff's right to medical care. Thus, the
objective reasonableness of Mere's actions depends on a
determination of factual questions that cannot be answered
at the summary judgment stage of litigation. See Ellington
v. Whiting, 807 F. App'x 67, 69–70 (2d Cir. 2020) (denying
summary judgment on qualified immunity grounds where
material issues of fact existed regarding whether defendants
were aware of plaintiff's condition); Robinson v. Taylor, No.
16-CV-0285, 2017 U.S. Dist. LEXIS 137233 (N.D.N.Y. Aug.
24, 2017) (denying summary judgment on qualified immunity
grounds where “resolution of the objective reasonableness of
Defendants’ actions ‘depends on the determination of certain
factual questions that cannot be answered at this stage of the
litigation.’ ”) (quoting Denton v. McKee, 332 F. Supp. 2d 659,
666 (S.D.N.Y. 2004)).
C. Peck Motion for Summary Judgment
Peck moves for summary judgment on all claims against
him, which include a claim of excessive force in violation of
the Eighth Amendment, deliberate indifference to a serious
medical need in violation of the Eight Amendment, and
retaliation in violation of the First Amendment.
1. Excessive Force as to Peck
Plaintiff does not oppose Peck's motion regarding his claims
for excessive force. See Pl.’s Resp. Mem. at 14. Thus, the
Court grants Peck's motion for summary judgment regarding
any claims of excessive force.
2. Deliberate Indifference to a
Serious Medical Need as to Peck
To establish an Eighth Amendment violation due to deliberate
indifference to a serious medical need, an inmate must
establish both an objective and subjective prong. St. Clair
Jones v. Lamont, 379 Fed. Appx. 58, 59 (2d Cir. 2010).
Peck argues that he is entitled to judgment as a matter of law
under both the objective and subjective prongs.
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a. Objective Prong
The objective prong of the deliberate indifference standard
requires that “the alleged deprivation ... be sufficiently
serious.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.
2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir. 1996)). This determination in turn requires two
further inquiries. Salahuddin v. Goord, 467 F.3d 263, 280,
279 (2d Cir. 2006). The first inquiry is “whether the prisoner
was actually deprived of adequate medical care.” Id. This
inquiry turns on whether the defendant acted “reasonably”
in response to an inmate's health risk or whether he failed
“to take reasonable measure in response to a medical
condition.” Id. at 279–80. The second inquiry is whether
the inadequacy in medical care is sufficiently serious. Id.
at 280. “[I]f the unreasonable medical care is a failure to
provide any treatment for an inmate's medical condition,
courts examine whether the inmate's medical condition is
sufficiently serious.” Id.
*19 Peck does not dispute that Plaintiff's injuries were
sufficiently serious as required by the second inquiry of the
objective prong. See Peck Reply. Mem. at 4. Peck instead
argues that the record evidence is insufficient to meet the first
inquiry of the objective prong because he reacted reasonably.
Peck Mem. at 14. Instead, Peck argues he was not aware of the
use of force against Plaintiff or Plaintiff's physical condition,
or that Plaintiff was having trouble breathing. Peck Mem. at
14. Peck further argues that, on the one occasion Plaintiff
asked if he could have his inhaler, Peck acted reasonably by
informing medical staff and contacting a supervisor. Id. at 14–
15.
Plaintiff contends Peck must have known of the use of force
against him, and thus knew of his injuries, because that
morning “another officer in the SHU told Lewis he would
not receive breakfast because he assaulted another officer.”
Pl.’s Resp. Mem. at 31. The Court finds that the mere fact
that a different officer in the SHU, on duty at a different time
of day, knew of the use-of-force incident involving Plaintiff,
is entirely too speculative and conclusory to create a triable
issue of fact as to whether Peck himself knew of the incident.
See Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020)
(“[M]ere conclusory allegations, speculation or conjecture
will not avail a party resisting summary judgment.”). Even
if the other officer's knowledge were imputed to Peck, the
other officer seemed to believe Plaintiff was the assailant, and
would not necessarily have known of any injuries Plaintiff
had received. Plaintiff's Grievance at 7A (stating the officer
said “no food for you because you assaulted a [sic] officer”).
However, Plaintiff offers more than the speculative assertion
above to support his claim that Peck knew of a serious risk
to his health. Plaintiff testified that he informed Peck he was
having a hard time breathing and was having an asthma attack,
but Peck did not do anything to help. Pl.’s Dep. at 263:16–
24; Pl.’s Grievance at 7B; Germano Report at 1–2. Plaintiff
further alleged that he requested his inhaler from Peck again,
after an hour with no assistance, and Peck told him he would
“just have to wait.” Pl.’s Grievance at 7B; Pl.’s Decl. ¶¶43–
44 8 . According to Plaintiff, he did not receive medical aid
until an additional hour and a half had passed. Pl.’s Grievance
at 7C. Additionally, a reasonable jury could take into account
the Germano Report, which found Peck exhibited “a lack of
care custody and control by departmental standards,” to find
Peck did not act reasonably.
8 Peck argues that Plaintiff has relied “almost
exclusively on his Declaration to invent questions
of fact” in response to Peck's motion. Peck
Reply Mem. at 5. Peck further argues that the
Court should disregard the assertions Plaintiff
makes in his declaration because they contradict
Plaintiff's deposition testimony and are “replete
with inconsistencies.” Id. at 2. The Court disagrees
on both counts. Plaintiff's material assertions that
he informed Peck he was having trouble breathing
and requested his inhaler multiple times find
support, not only in Plaintiff's Declaration, but in
both his deposition testimony and the Germano
Report. Pl.’s Dep. at 263:16–24; Pl.’s Grievance at
7B. Further, while it is true that a declaration made
in response to a motion for summary judgment
may be disregarded to the extent it contradicts past
deposition testimony, the two must be “actually
contradictory.” Palazzo v. Corio, 232 F.3d 38.
43 (2d Cir. 2000). The Court does not agree
that Plaintiff's Declaration is inconsistent with his
deposition. Peck claims that Plaintiff states Peck
was not at his post in his declaration, but in the
deposition, stated that it was Mere who was not
at his post. Peck Reply Mem. at 2. While Plaintiff
does state that Mere was not at his post in his
deposition, Pl.’s Dep. at 208, he also states later that
Peck was not at his post the next day, id. at 265:6–8.
Similarly, Peck argues it is inconsistent for Plaintiff
to claim in his later declaration that he did not
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receive his inhaler until after Peck did not respond,
when he admitted in his previous deposition that
he received an inhaler before Peck even began his
shift. Peck Reply Mem. at 3. However, Plaintiff
makes clear that, while he did receive his inhaler
the day before while Mere was on watch, he was
still short of breath the next day, and thus requested
the inhaler again from Peck. Pl.’s Grievance at 7B;
Pl.’s Decl. ¶¶ 31, 38.
*20 Further, the record belies Peck's assertion that he acted
reasonably because he contacted a supervisor in response to
Plaintiff's request. Notably, Peck does not cite to any record
material to support this factual assertion. See Peck Mem. at
14. Indeed, Peck denied during his deposition that he ever
requested medical attention for Plaintiff, Peck Dep. at 43:2–
43:8, Peck testified that when he contacted a roundsmen about
getting a supervisor, he did not recall mentioning any need for
medical attention and “[t]he only thing [he] wanted to have
the roundsman do was to have a sergeant come down,” id. at
46:14–47:2, Peck also testified he did not recall ever telling
Sergeant Tamer that Plaintiff had requested medical attention
and did not contact medical directly at any point, id. at 57:5–
57:23.
Construing the evidence in the light most favorable to
Plaintiff, the Court concludes that a reasonable jury could
find Peck knew Plaintiff was in severe medical need due to
his inability to breathe, but did not act to obtain aid, and
thus did not act reasonably in response to Plaintiff's requests.
Therefore, Peck is not entitled to summary judgment under
the objective prong of the deliberate indifference standard.
b. Subjective Prong
The subjective prong of the deliberate indifference standard
requires that a defendant prison official act with a sufficiently
culpable state of mind. They must “know[ ] of and disregard[ ]
an excessive risk to inmate health or safety.” Hill, 657 F.3d at
122 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
In other words, they must “act[ ] or fail[ ] to act ‘while
actually aware of a substantial risk that serious inmate harm
will result.’ ” Acosta v. Thomas, 837 Fed. Appx. 32 (2d Cir.
2020) (quoting Salahuddin, 467 F.3d at 280).
Peck argues he did not know of and disregard an excessive
risk to inmate health or safety because he was not informed
of Plaintiff's physical condition, he did not notice any injuries
upon beginning his assignment, and that Plaintiff testified that
the extent of his medical request was for an inhaler because
he was having an asthma attack. See Peck Mem. at 15–16.
However, as stated above, a reasonable jury could credit
Plaintiff's account and find that he informed Peck he was
having an asthma attack and was unable to breathe. Pl.’s Dep.
at 263:16–24; Pl.’s Grievance at 7B; Germano Report at 1–
2. Given Peck's deposition testimony, a reasonable factfinder
could likewise find that Peck did not undertake any action to
provide medical aid in response to Plaintiff's reports that he
could not breathe. Peck Dep. at 43:2–8; 46:14–47:2; 57:5–23.
Thus, a factfinder could find Peck was aware of an excessive
risk to Plaintiff's health, and that Peck disregarded it by failing
to take any action to provide aid. 9 See Warren v. City of New
York Dep't of Corr. Med. Staff, No. 17-CV-1125, 2021 WL
1163105, at *11 (E.D.N.Y. Mar. 26, 2021) (denying summary
judgment where material dispute of fact existed regarding
whether defendant provided plaintiff medical attention in
response to asthma attack); Ennis v. Davies, No. 87-CV-1465,
1990 WL 121527, at *3 (S.D.N.Y. Aug. 14, 1990) (holding
that a jury could reasonably find that inmate's request for
his asthma medication was sufficient to make the defendants
aware of a serious medical need and failure to provide
medication constituted deliberate indifference).
9 Peck argues that, to meet the subjective prong of
the deliberate indifference claim against a non-
medical official, “the plaintiff must establish that
the official ‘intentionally delayed access to medical
care’ ” after the plaintiff made the problem known.
Peck Mem. at 13. However, an examination of the
higher court decisions from which this doctrine
springs indicates that, while they consider showing
intentional delay to be sufficient to establish
deliberate indifference, they do not state that such
a showing is necessary to establish deliberate
indifference. See Estelle v. Gamble, 429 U.S.
97, 104–105 (1976) (“[D]eliberate indifference
to serious medical needs of prisoners ... [is
manifested] by prison guards in intentionally
denying or delaying access to medical care.”);
Archer v. Dutcher, 733 F.2d 14, 16 (2d Cir. 1984)
(“[I]f defendants did decide to delay emergency
medical aid ... in order to make Archer suffer, surely
a claim would be stated under Estelle.”). However,
to the extent such a showing is necessary, the Court
finds that a reasonable jury could find intentional
delay here due to Peck's alleged complete inaction
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in the face of Plaintiff's statements he was having an
asthma attack and could not breathe. See Baumann
v. Walsh, 36 F. Supp. 2d 508, 512 (N.D.N.Y.
1999) (finding dispute of material fact regarding
whether defendants intentionally delayed care
where evidence showed they ignored plaintiff's
complaints and refused medical care).
*21 Thus, because there are disputes as to material facts
regarding whether Peck acted reasonably and whether he
knew of and acted with reckless disregard regarding an
excessive risk to Plaintiff's health, the Court denies Peck's
motion for summary judgment as to Plaintiff's claim for
deliberate indifference to a serious medical need.
3. Retaliation as to Peck
Plaintiff alleges Peck withheld proper medical treatment and
filed a false misbehavior report against him as retaliation for
his filing of the lawsuit against Cowan. Pl.’s Resp. Mem. at
36.
To succeed on a claim of retaliation in violation of the First
Amendment, a plaintiff must show “(1) the conduct cited as
the cause for retaliation is protected; (2) the defendant took
adverse action against the plaintiff; and (3) there was a causal
connection between the protected conduct and the adverse
action.” Davis, 320 F.3d at 325; see also Pidlypchak, 389
F.3d at 380. In determining whether a causal connection exists
between a protected activity and a prison official's actions, a
court may consider several factors including “(i) the temporal
proximity between the protected activity and the alleged
retaliatory act; (ii) the inmate's prior good disciplinary record;
(iii) vindication at a hearing on the matter; and (iv) statements
by the defendant concerning his motivation.” Baskerville, 224
F. Supp. 2d at 732 (citing Colon, 58 F.3d at 872–73 (2d Cir.
1995)).
Peck argues there is insufficient evidence on the record to
establish a causal connection between his alleged actions and
any retaliatory animus. See Peck Mem. at 22. In response,
Plaintiff asserts that there is sufficient circumstantial evidence
to infer a causal connection due to the temporal proximity
between the protected conduct and Peck's alleged retaliatory
conduct and the due to fact that Bare Hill is close
geographically to Franklin, the facility where Cowan worked.
See Pl.’s Resp. Mem. at 38–39.
Regarding temporal proximity, the Court cannot agree that
this factor meaningfully supports a causal connection in this
case. Peck's alleged actions took place around ten months
after Plaintiff filed the Cowan Suit. Noonan Decl. Ex. 13.
While the Second Circuit “has not drawn a bright line to
define the outer limits” of temporal proximity in retaliation
cases, Gorman–Bakos v. Cornell Co-op Ext. of Schenectady
Cty., 252 F.3d 545, 554 (2d Cir. 2001), a gap of ten months
is somewhat longer than most that are found to support a
causal connection. See, e.g., Gorman-Bakos, 252 F.3d at
554 (finding five-month gap sufficiently short to support
inference of causal connection); Espinal, 558 F.3d at 129
(finding six-month gap sufficiently short). However, it is
relevant that the Cowan Suit was ongoing at the time of Peck's
alleged retaliatory actions. See Cruz v. Lee, No. 14-CV-4870,
2016 WL 1060330, at *7 (S.D.N.Y. Mar. 15, 2016) (finding
temporal proximity sufficient to support retaliation for filing
lawsuit where lawsuit was ongoing). Given that the Cowan
Suit was ongoing, but nothing occurred in the lawsuit near
in time to the alleged retaliatory acts, 10 and the suit was
filed ten months prior to the alleged acts, the Court finds this
factor does not strongly favor, nor disfavor, an inference of
causation.
10 The only event Plaintiff points to in the Cowan Suit
that happened near in time to these events is the
denial of pro bono counsel in November 2016, five
months after the alleged retaliatory events. Pl.’s
Resp. Mem. at 38.
*22 Militating against a finding of causal connection,
Plaintiff's prior disciplinary record could not be categorized
as “good.” It contains multiple infractions for violating direct
orders and harassment, amongst others. See Mitchell Decl.
Ex. D. Also, Plaintiff was eventually found guilty of the
misbehavior ticket issued by Peck. Pl.’s SMF at 71.
However, most significantly, Plaintiff's grounds for alleging
a causal connection are too conclusory and speculative
to create a triable issue of fact regarding Peck's alleged
retaliatory motive. Plaintiff's main argument is that “there is
ample evidence to conclude that Moving Defendants knew
other officers at Franklin – a facility located in the same
small town.” Pl.’s Resp. Mem. at 39. Namely, Plaintiff
references Peck's deposition testimony that when he goes to
trainings, there would be officers from Franklin and Upstate
Correctional there as well, Peck Dep. at 115:12–115:22, and
that Defendants Kingston and Mere stated they would run
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into officers from Franklin at times, Kingston Dep. at 92:10–
92:21, Mere Dep. 18:16–19:2.
Courts must be “careful to require non-conclusory
allegations” when dealing with prisoner retaliation claims
because they are “ ‘easily fabricated,’ and accordingly ‘pose a
substantial risk of unwarranted judicial intrusion into matters
of general prison administration.’ ” Bennett v. Goord, 343
F.3d 133, 137 (2d Cir. 2003). Plaintiff did not file a suit
or complaint against Peck himself. The mere fact that Peck
works in the same general area as an officer against whom
Plaintiff filed a lawsuit, and thus conceivably could have
met that officer or others who know him, and in turn could
have potentially acted in retaliation for a suit against that
officer, is entirely too speculative and conclusory to create
an issue of material fact. Even where officers have worked
together in the same facility, allegations that one retaliated
on behalf of another have generally been found conclusory
and insufficient to withstand summary judgment absent other
evidence of retaliatory motive. See Faulk, 545 F. App'x at
59 (finding allegations too conclusory to withstand summary
judgment because “no evidence suggest[ed] that they were
motivated by, or even aware of, [the] grievance,” because
defendants were not themselves named in the grievance
and allegations they had retaliated on behalf of another
officer in the same facility were merely “conclusory”); Wright
v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (upholding
summary judgment where plaintiff alleged retaliation for
filing complaint regarding acts of other inmates and officials
at same facility, but did not name defendant). This contrasts
with cases where courts have found disputes of material fact
to exist, even though a defendant was not directly named in a
grievance or suit, because a direct connection was established
between the defendant and the officer who was the target of
the suit, or the defendant was alleged to have made statements
referencing the grievance or suit. See Colon v. Coughlin,
58 F.3d 865 (2d Cir. 1995) (“If this circumstantial evidence
represented the sum total of Colon's proof, we might be
inclined to affirm the grant of summary judgment ... [but
Colon] also presents direct evidence of retaliation, namely,
defendant Bezio's alleged admission of the existence of
a retaliatory scheme.”); Roland v. McMonagle, No. 12-
CV-6331, 2015 WL 5918179, at *5 (S.D.N.Y. Oct. 9, 2015)
(finding evidence sufficient to support inference of retaliatory
motive where one defendant lived with the two officers who
were the subject of the past grievance and “most significantly,
[plaintiff] testified that a Defendant mocked him for filing
grievances during the alleged attack”); Farid v. Goord, 200
F. Supp. 2d 220, 237 (W.D.N.Y. 2002) (finding issue of
triable fact existed as to whether false misbehavior report
was motivated by complaint against other officer where
defendant knew of the complaint “well before the filing of the
Misbehavior Report”).
*23 Because Plaintiff's allegations that Peck knew of and
was motivated by the Cowan Suit are entirely conclusory
and speculative, the Court grant's Peck motion for summary
judgment as to Plaintiff's claims of retaliation.
D. Kearney and Kingston Motion for Summary
Judgment
Defendants Kearney and Kingston argue they are entitled
to summary judgment as to Plaintiff's claims for excessive
force in violation of the Eighth Amendment, Retaliation in
violation of the First Amendment, and are entitled to qualified
immunity. See Kearney & Kingston Mem. at 7.
1. Excessive Force and Personal
Involvement as to Kearney and Kingston
Defendants Kearney and Kingston argue that they are entitled
to summary judgment as to Plaintiff's claim of excessive
force because the record fails to establish that they were
personally involved in the constitutional violation. Id. at 8–13.
Plaintiff responds by arguing that personal involvement may
be established by showing a defendant facilitated or attempted
to cover up a constitutional violation. Pl.’s Resp. Mem. at 21–
22.
“Because vicarious liability is inapplicable to ...§ 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) “To
hold a state official liable under § 1983, a plaintiff must
plead and prove the elements of the underlying constitutional
violation directly against the official without relying on a
special test for supervisory liability.” Tangreti v. Bachmann,
983 F.3d 609, 620 (2d Cir. 2020).
Plaintiff cites several cases holding that if a defendant
attempts to facilitate or cover up a constitutional violation,
that is sufficient to find that defendant personally participated
in the violation. See, e.g., Edwards v. Annucci, No. 17-
CV-5018, 2019 WL 1284295, at *7 (S.D.N.Y. Mar. 20,
2019) (“A prisoner's well-pleaded allegation that a defendant
‘fil[ed] a false report to his supervisors in order to cover
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up’ constitutional violations will ‘give rise to a plausible
inference’ that the defendant ‘was personally involved in
the purported constitutional violations.’ ”) (quoting Randle
v. Alexander, 960 F. Supp. 2d 457, 478 (S.D.N.Y. 2013)).
Additionally, this Court held in response to Kearney and
Kingston's Motion to Dismiss, Dkt. No 79, that these
allegations of facilitation and cover-up were sufficient to
establish personal involvement, See Dkt. No. 100 (“Order
on Motion to Dismiss”) at 8–9. This would imply that if
the record now presented sufficient evidence that Defendants
facilitated or attempted to cover up the use of excessive force,
a reasonable jury could find they personally participated in
the Eighth Amendment violation.
However, subsequent to the decisions Plaintiff cites and
this Court's Order on Motion to Dismiss, the Second
Circuit clarified the requirements for personal involvement in
Tangreti.
In Tangreti, an inmate filed suit under 42 U.S.C. § 1983
alleging a prison supervisor displayed deliberate indifference
to a risk of sexual abuse because the supervisor was
grossly negligent in supervising the abusing officers. Id.
at 616. The Second Circuit found that supervisory liability
of this type violated the standard set forth in Iqbal, and
that “a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has
violated the Constitution.” Id. at 616. Further, “ ‘[t]he factors
necessary to establish a [§ 1983] violation will vary with
the constitutional provision at issue’ because the elements of
different constitutional violations vary.” Id. at 618 (quoting
Iqbal, 556 U.S. at 676).
*24 Thus, while previously many court's only required a §
1983 Plaintiff to establish a “tangible connection” between a
defendant's acts and injuries suffered, see Miller v. Annucci,
No. 919-CV-0030, 2019 WL 2370295 (N.D.N.Y. June 5,
2019) (Kahn, J.); Austin v. Pappas, No. 04-CV-7263, 2008
WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008); in Tangreti, the
court required the plaintiff to show “that [defendant] violated
the Eighth Amendment by [defendant's] own conduct” and
establish the elements of her Eighth Amendment claim
directly against the defendant. Tangreti, 983 F.3d at 619.
While Plaintiff's allegations regarding excessive force against
Kearney and Kingston do not allege supervisory liability, the
reasoning in Tangreti applies with equal force here: Plaintiff
must show that Defendants violated the Eighth Amendment
by their own conduct, and establish the elements of his Eighth
Amendment claim for excessive force 11 directly against
Kearney and Kingston rather than relying on the conduct
of other officers. See Quintin v. Cty. of Nassau, No. 18-
CV-5852, 2022 WL 888950, at *3 (E.D.N.Y. Mar. 25, 2022)
(applying Tangreti outside of the supervisory context and
stating that “it is well-settled that to establish liability under
Section 1983, a plaintiff must ‘plead and prove that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution’ ” (quoting
Tangreti, 983 F.3d at 618)); Karelefsky v. Brann, No. 20-
cv-9485, 2022 WL 624424, at *2 (S.D.N.Y. Mar. 1, 2022)
(observing that to find personal involvement and “hold a
state official liable under § 1983, a plaintiff must plead and
prove the elements of the underlying constitutional violation
directly against the official.” (citing Tangreti, 983 F.3d at
620)).
11 While Plaintiff made allegations in his Amended
Complaint that “none of the [Defendants] took
reasonable steps to protect [Plaintiff] from the
objectively unreasonable and conscience shocking
excessive force of the others, despite being in
a position to do so,” Plaintiff seems to have
abandoned this argument regarding Kingston and
Kearney and thus the Court will not address it.
Kingston and Kearney specifically state in their
motion for summary judgment that they are moving
to dismiss all claims against them, Kearney &
Kingston Mem. at 1, but Plaintiff did not argue
in his response that they were liable due to a
failure to protect. See generally Pl.’s Resp. Mem.;
Pukhovich v. City of N.Y., No. 16-CV-1474,
2018 WL 4688943 at *8 (E.D.N.Y. Sep. 27,
2018) (finding claims abandoned where complaint
contained certain claim and defendants moved for
summary judgment on “all” claims and neither
party mentioned the cause of action in briefing);
Singleton v. City of Newburgh, 1 F. Supp. 2d 306,
312 (S.D.N.Y. 1998) (finding claim abandoned on
summary judgment because it was not raised in the
record after being asserted in the complaint).
As stated above, to establish an Eighth Amendment claim of
excessive force, a plaintiff must show both an objective and
subjective component. “The objective component of a claim
of cruel and unusual punishment focuses on the harm done, in
light of ‘contemporary standards of decency ... when prison
officials use force to cause harm maliciously and sadistically,
‘contemporary standards of decency always are violated.’ ”
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Wright v. Goord, 554 F.3d 255, 268–69 (2d Cir. 2009). The
subjective component requires a plaintiff to show a defendant
official had “a sufficiently culpable state of mind.” Hayes v.
Dahlke, 976 F.3d 259, 274 (2d Cir. 2020); see also Hudson v.
McMillian, 503 U.S. 1, 7 (1992).
*25 A corrections officer who knowingly facilitates an
assault on an inmate could be found to have directly,
through their own actions, deprived an inmate of his right
to be free from cruel and unusual punishment by causing
physical bodily harm in the same way an officer who directly
participates in the assault deprives an inmate of such rights,
and thus the facilitating officer has “used force” to cause
harm maliciously. C.f. Smith v. Levine, 510 F. App'x 17,
20 (2d Cir. 2013) (finding complaint to have sufficiently
alleged defendant's personal participation in constitutional
violation where allegations created “obvious inference” that
defendant's action was a “precursor” to the violative act).
However, an officer who attempts to cover up an assault
after the fact, while potentially committing other violations,
may not have personally participated in cruel and unusual
punishment in the same way such that a plaintiff could
establish the elements of an excessive force claim against
them directly.
Thus, because it is admitted neither Kearney nor Kingston
participated directly in the alleged assaults on Plaintiff, the
question before the Court is whether there is sufficient
evidence on the record for a reasonable jury to conclude that
Defendants knowingly facilitated the assault.
Plaintiff argues there is evidence showing Kearney made up
the phone infraction and Plaintiff's request to use the phones
out of whole cloth, thus facilitating the assault by establishing
a pretext to transfer Plaintiff to the SHU. Pl.’s Resp. Mem.
at 23. After being shown a picture of Plaintiff, Kearney
informed Hanson that Plaintiff had asked to use the phone the
day before in violation of his cube confinement restrictions.
Pl.’s Resp. Mem. at 23; Kearney & Kingston SMF ¶ 15–
16. Plaintiff disputes that he was the inmate who approached
Kearney to make the call, Pl.’s SMF at 4; Pl.’s Resp. Mem.
at 22, and there is evidence on the record that could allow a
reasonable factfinder to credit Plaintiff's account. Hanson did
not remember ever showing Kearney a picture of Plaintiff.
Pl.’s Resp. Mem. at 22. Additionally, evidence on the record
indicates that another inmate was using Plaintiff's ID to make
phone calls during the relevant time, Mitchell Decl. Ex. O
(“Germano Deposition”) at 76, and Plaintiff was found not
guilty of the misbehavior ticket accusing him of making
phone calls in violation of cube restrictions, Mitchell Decl.
Ex. K at 59.
Making all reasonable inferences in Plaintiff's favor, a
factfinder could reasonably credit his account and conclude
that he did not ask Kearney for permission to use the phone on
April 22, 2016. A reasonable factfinder could thus conclude
Kearney was lying when, after seeing a picture of Plaintiff, he
told Hanson Plaintiff was the one who asked to use the phone,
and could infer from this dishonesty that Kearney did so to
facilitate, or aid in the facilitation of, Plaintiff's transfer to the
SHU.
Plaintiff alleges Kingston facilitated the excessive use of
force by initiating Plaintiff's transfer knowing and intending
that Plaintiff be assaulted. See Pl.’s Resp. Mem. at 24. The
alleged basis for the initial transfer of Plaintiff to the SHU
was Kingston's review of Plaintiff's phone log that showed
significant usage while Plaintiff was on cube confinement.
Kingston SMF ¶ 24. It is undisputed that Plaintiff's phone
log did indeed show significant usage while Plaintiff was
restricted from using the phone. See Mitchell Decl. Ex
M (“Phone Log”). However, the record establishes that
Kingston reviewed the phone logs 3 out of 5 days every
week he worked, Kingston Dep. at 38:9–16, would write a
misbehavior report “as soon as he knew” of multiple improper
calls made over more than one day, id., at 49:16–50:12, and
would typically find out about such a violation within a day
or two of it occurring, 50:13–50:18. However, despite this
regular review and usual habit of writing misbehavior reports
immediately, Kingston did not write a misbehavior report for
Plaintiff until after 18 calls had accrued over the course of 8
days. Pl.’s SMF ¶ 60.
*26 A reasonable jury could conclude that Kingston did
indeed notice the phone infraction prior to April 23, 2016,
as he testified he generally would have, but did not write a
misbehavior ticket immediately as was his usual practice. A
reasonable jury could further infer the reason for delay was
to facilitate Plaintiff's transfer to the SHU as a specific time
on a specific day. Further, if a jury were to believe Plaintiff's
account that he was assaulted on April 26 during and
immediately after his transfer, it would not be unreasonable to
infer that Kingston initiated the transfer on that day in order
to facilitate the assault.
2. Retaliation as to Kearney and Kingston
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Defendants argue that there is insufficient evidence on the
record to establish that their actions were sufficiently adverse
or that they were motivated by retaliation for Plaintiff's
filing of the Cowan Suit. Kearney & Kingston Mem. at 13.
Defendants also argue they would have undertaken the actions
even in the absence of the protected conduct. Id.
a. Adverse Action
Plaintiff alleges that Kearney retaliated against him by
supplying false allegations that supported a false misbehavior
ticket and co-signing that ticket, and that both Kearney
and Kingston retaliated by facilitating a retaliatory transfer
knowing and intending that Plaintiff be assaulted. Pl.’s Resp.
Mem. at 35.
The Court holds that, because Plaintiff was found innocent of
the allegations in Kearney's allegedly false ticket, Pl.’s SMF
¶ 62, and thus suffered no adverse effects due to its issuance,
this does not constitute an adverse action. See Tremblay, 2021
WL 1575951, at *4.
However, a retaliatory transfer to a facility with more
restrictions constitutes an adverse action sufficient to
discourage other inmates form exercising their rights, see
Miller, 2019 WL 2370295, at *10, especially if that transfer
is undertaken with the purpose of facilitating an assault upon
an inmate, Abreu, 778 F. App'x at 33 (“[A] severe beating,
false misbehavior reports, or the withholding of medication
could constitute sufficiently adverse actions that would deter
a prisoner of ‘ordinary firmness’ from exercising his rights.”).
Thus, if a factfinder finds Defendant's facilitated Plaintiff's
transfer to the SHU, intending that he be assaulted during
said transfer, a reasonable jury could conclude they had
undertaken adverse actions sufficient to support a claim of
retaliation.
b. Causal Connection
Courts must be “careful to require non-conclusory
allegations” when dealing with prisoner retaliation claims
because they are “ ‘easily fabricated,’ and accordingly ‘pose a
substantial risk of unwarranted judicial intrusion into matters
of general prison administration.’ ” Bennett, 343 F.3d at 137.
Plaintiff's main basis for asserting a retaliatory motive is that
Defendants work in the same general area as an officer against
whom Plaintiff filed a lawsuit, Cowan, and thus conceivably
could have met him or others who know him. See Pl.’s Resp.
Mem. at 39.
While the Court found this was insufficient to create an issue
of material fact regarding retaliatory motive as to Defendant
Peck, the Court finds differently with regard to Defendants
Kearney and Kingston. This is so because, on summary
judgment, the Court must review the record as a whole and
make all favorable inferences in favor of the nonmoving party.
See Jasco Tools, Inc. v. Dana Corp., 574 F.3d 129, 152 (2d Cir.
2009) (stating that a court considering a summary judgment
motion must view the record as a whole and “disregard all
evidence favorable to the moving party that the jury is not
required to believe” (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 135 (2000))); Howley v. Town of
Stratford, 217 F.3d 141, 151 (2d Cir. 2000) (“In determining
the appropriateness of summary judgment, the court should
not consider the record solely in piecemeal fashion ... for a
jury ... would be entitled to view the evidence as a whole.”).
*27 On the record before the Court, it has already been
determined that a reasonable factfinder could conclude that
Kearney and Kingston acted to facilitate Plaintiff's transfer to
the SHU for the purpose of his assault and that during and
immediately after that transfer Plaintiff was indeed assaulted
by other Corrections Officers who specifically stated they
were doing so in retaliation for his filing of the Cowan Suit.
Thus, a reasonable jury could infer that Defendants acted with
a similar retaliatory motive.
c. Action Undertaken in Absence of Protected Conduct
Even if a Plaintiff establishes that he engaged in protected
activity, the defendant undertook an adverse action, and that
there is a causal relationship, a defendant may still defeat
liability if they can show by preponderance of the evidence
that they would have taken the adverse action against the
plaintiff “even in the absence of the protected conduct.”
McRae v. Fischer, No. 9:17-CV-00146, 2017 WL 3535298,
at *7 (N.D.N.Y. July 14, 2017) (quoting Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
“[I]f taken for both proper and improper reasons, state action
may be upheld if the action would have been taken based on
the proper reasons alone.” Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996).
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Defendants argue that, because it is undisputed the phone
log for Plaintiff's PIN showed numerous calls were made
in violation of his cube restriction, there was an undisputed
legitimate basis for their transfer of Plaintiff to the SHU,
and thus there is no dispute as to any material fact
regarding whether they would have undertaken the same
action regardless of Plaintiff filing the Cowan Suit. Kearney
& Kingston Mem. at 18. However, Plaintiff's claim is not
merely that Defendants transferred him, but that they did so
at a specific time and date in order to facilitate his assault
at the hands of other officers. See Pl.’s Resp. Mem. at 35,
40. Despite the phone logs, a reasonable jury could find
that Defendants undertook their retaliatory actions on April
23, 2016 to facilitate an assault, and would not have done
so absent a retaliatory motive. Indeed, Kingston's testimony
indicates that, under most circumstances, an inmate who had
made calls like Plaintiff was accused of doing would have
been transferred much sooner. See Kingston Dep. 49:16–
50:12.
3. Supervisory Liability Claims as to Kearney and Kingston
Kearney and Kingston argue that Plaintiff's claims for
supervisory liability should be dismissed because they are
no longer viable following the Second Circuit's decision in
Tangreti. Kearney & Kingston Mem. at 20. Plaintiff does not
contest this assertion, see Pl.’s Mem, and the Court agrees.
Therefore, Kearney and Kingston 12 are granted summary
judgment on any claims pressed against them based on
supervisory liability.
12 Supervisory liability claims will be dismissed
against all other Defendants for the same reason
and on the same grounds.
4. Qualified Immunity as to Kearney and Kingston
In order to establish a defense of qualified immunity, a
defendant public official must show that one of two conditions
is satisfied, “(a) the defendant's action did not violate clearly
established law, or (b) it was objectively reasonable for
the defendant to believe that his action did not violate
such law.” Gorman v. Rensselaer Cty., 910 F.3d 40, 45
(2d Cir. 2018); see also Green, 219 F.3d at 59. A public
official's actions are objectively reasonable if “ ‘officers of
reasonable competence could disagree’ on the legality of the
defendant's actions.” Green, 219 F.3d at 59 (quoting Salim,
93 F.3d at 91). Summary judgment should not be granted on
basis of qualified immunity due to objective reasonableness
“unless the defendant shows that no reasonable jury, viewing
the evidence in the light most favorable to the Plaintiff,
could conclude that the defendant's actions were objectively
unreasonable in light of clearly established law.” Husain, 494
F.3d at 131.
*28 To establish qualified immunity, Kearney and Kingston
rely on their previous arguments that their conduct did
not, as a matter of law, violate Plaintiff's rights, asserting
that therefore their actions were objectively reasonable and
they are entitled to qualified immunity. See Kearney &
Kingston Mem. at 22. However, the Court has found that a
reasonable jury could conclude that both or either Defendant
facilitated Plaintiff's transfer for the purposes of Plaintiff
being assaulted, in violation of his Eighth Amendment right
to be free of cruel and unusual punishment and in retaliation
for his filing of the Cowan suit. See supra Sections IV(D)(1)–
(2). Because inmates have a clearly established right not to
be retaliated against for exercise of First Amendment rights,
Burton v. Lynch, 664 F. Supp. 2d 349, 368-69 (S.D.N.Y.
2009) (“[A] claim of government retaliation for the exercise
of First Amendment rights ... alleges the violation of a
clearly established right.”), and have a clearly established
right to be free from cruel and unusual punishment, and
excessive, malicious use of force, Green, 219 F.3d at 59 (“It
is beyond dispute that the right to be free from excessive
force has long been clearly established.”), a reasonable be jury
could likewise conclude that Defendants’ actions, allegedly
facilitating these violations, were objectively unreasonable in
light of clearly established law.
Thus, the Court finds Defendants Kearney and Kingston are
not entitled to qualified immunity regarding Plaintiff's claims
of excessive force and retaliation against them.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant Robideau's Motion for Summary
Judgment, Dkt. No. 136, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Robideau
for excessive force under the Fourth and Fourteenth
Amendments, deliberate indifference to serious medical need
under the Eighth Amendment, and any claims alleging
supervisory liability are hereby DISMISSED from this
action; Plaintiff's claims against Robideau for excessive
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force under the Eighth Amendment and retaliation survive
Defendant Robideau's Motion; and it is further
ORDERED, that Defendant Mere's Motion for Summary
Judgment, Dkt. No. 138, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Mere
for excessive force under the Fourth and Fourteenth
Amendments, retaliation in so far as it relates to issuance
of misbehavior tickets, and supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against Mere
for excessive force under the Eighth Amendment, medical
indifference under the Eighth Amendment, and retaliation
related to use of force in the strip-frisk room and denial of
adequate medical care survive Defendant Mere's Motion; and
it is further
ORDERED, that Defendant Peck's Motion for Summary
Judgment, Dkt. No. 137, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Peck for
excessive force under the Fourth, Fourteenth, and Eighth
Amendments, retaliation, and supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Peck for medical indifference under the Eighth Amendment
survive Defendant Peck's Motion; and it is further
ORDERED, that Defendant Kearney's Motion for Summary
Judgment, Dkt. No. 139, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Kearney
for excessive force under the Fourth and Fourteenth
Amendments and for supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Kearney for excessive force under the Eighth Amendment
and for retaliation survive Defendant Kearney's Motion; and
it is further
ORDERED, that Defendant Kingston's Motion for Summary
Judgment, Dkt. No. 139, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Kingston
for excessive force under the Fourth and Fourteenth
Amendments and for supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Kingston for excessive force under the Eighth Amendment
and for retaliation survive Defendant Kingston's Motion; and
it is further
ORDERED, that the Clerk serve a copy of this
Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 991729
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Lewis v. Hanson
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:18-CV-00012
Lewis v. Hanson et al
— N.D.N.Y. Jan. 03, 2018 Docket
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Lewis v. Hanson
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Lewis v. Hanson
2022 WL 991729 , N.D.N.Y. , Mar. 31, 2022
Related References (1)
2. Lewis v. Hanson
2020 WL 1812556 , N.D.N.Y. , Apr. 09, 2020
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Bouknight v. Shaw, Not Reported in F.Supp.2d (2009)
2009 WL 969932
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 969932
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Vincent BOUKNIGHT, Plaintiff,
v.
Warden Robert SHAW, Officer
Rivera, Captain Matthew, Defendants.
No. 08 Civ. 5187(PKC).
|
April 6, 2009.
MEMORANDUM AND ORDER
P. KEVIN CASTEL, District Judge.
*1 Plaintiff Vincent Bouknight brings this action pro se
under 42 U.S.C. § 1983, seeking monetary damages for
violations of his constitutional rights. Defendants move to
dismiss under Rule 12(b) (6), Fed.R.Civ.P., for failure to
state a claim. For the reasons explained below, the motion is
granted.
BACKGROUND
A. Facts
The following facts, taken from plaintiff's Amended
Complaint (“A.C.”), are accepted as true for the purposes of
this motion. 1
1 Because the pages of plaintiff's Amended
Complaint are not numbered, the Court will refer
to the page numbers inserted on the copy submitted
by defendants. See Chestnov Decl. ex. A.
At the time of the events at issue here, plaintiff was a
pre-trial detainee at Riker's Island. (A.C. at 1.) On April
7, 2007, at or about 10:50 p.m., defendant Officer Rivera
began spreading rumors to inmates who were “active gang
members of the Latin Kings and Bloods.” (Id.) Officer
Rivera told these inmates that plaintiff was “a rat, snitch
and a homosexual.” (Id.) Officer Rivera allegedly intended
to “incite[ ] such gang members to get [plaintiff] out of the
housing area, because of [Officer Rivera's] personal dislike[ ]
of homosexuals, and snitches.” (Id.) That night, plaintiff
endured about three and a half hours of inmates calling him
a snitch and a homosexual. (Id.) During the remainder of the
week, inmates continued to “tortur[e] [plaintiff] with such
abusive words, stating and calling [him] a snitch.” (Id.) This
incident led plaintiff to write to defendant Warden Shaw and
to file a grievance. (Id. at 1–2.) Neither Mr. Shaw nor the
grievance committee responded. (Id. at 2.)
In May, plaintiff was moved to a different housing unit and
was “hired as house gang.” (Id.) On or about July 14, 2007,
Officer Rivera remarked that she “can't have snitches and
homosexuals working in my house.” (Id.) About two days
later, plaintiff was fired by Officer Rivera from his working
assignment. (Id.) During these two days and for the remainder
of the week, Officer Rivera “prolonged the torture and told
inmates[ ] that she didn't like me being in her house because
I was a homosexual and a snitch.” (Id.) On or about July
30, 2007, plaintiff filed a grievance. (Id.) The grievance
committee responded that Mr. Shaw would review plaintiff's
grievance “because of the lack of jurisdiction regarding a
harassment issue.” (Id.) Also on July 30, Officer Rivera wrote
plaintiff up for an infraction. (Id .) As she was writing plaintiff
up, she was saying, “If the inmates didn't get you out of the
house, I will get you out, you snitch gay, homosexual.” (Id.)
Officer Rivera “guarantee[d] ... that [plaintiff] will be going
to the box (lock up).” (Id.) Plaintiff was found guilty of
the infraction and was sentenced to twenty days in lock up.
(Id.) Defendant Captain Matthew threatened to tamper with
plaintiff's food when plaintiff entered lock up. (Id. at 3.)
On August 2, 2007, plaintiff wrote to Warden Shaw regarding
Officer Rivera. (Id. at 2.) Plaintiff received no response. (Id.)
When plaintiff attempted to speak to Mr. Shaw upon seeing
him at plaintiff's housing area, Mr. Shaw did not make himself
available. (Id.) On August 30, 2007, Officer Rivera locked
plaintiff in his cell for the day and did not let him out. (Id.
at 2–3.)
B. Procedural History
*2 Plaintiff filed his complaint on June 6, 2008. In an Order
dated the same day (“June 6 Order”), Chief Judge Kimba M.
Wood granted plaintiff's request to proceed in forma pauperis
and directed plaintiff to submit an amended complaint within
sixty days to cure several defects in his original pleading. The
court held that “[p]laintiff's present allegations of harassment,
threats and the spreading of rumors regarding his sexuality
and snitching are insufficient to sustain a claim under §
1983” because “threats or profanity alone do not constitute
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a violation of any federally protected right.” June 6 Order
at 2. The court explained that “in order to state a claim
for incitement in violation of his rights, [plaintiff] must
allege facts showing that prison officials were deliberately
indifferent because they knew and disregarded an excessive
risk to his safety or created an environment that subjected
him to a significant risk of injury.” Id. at 2–3. The court also
held that plaintiff's allegation of retaliation was “conclusory”
and that “the issuance of the misbehavior report, without
more, fails to state a retaliation claim.” Id. at 3. Rather, “[i]n
order to establish a retaliation claim,” the court instructed that
“plaintiff must show that prison officials retaliated against
him for engaging in protected conduct.” Id. at 4. The court
explained that “[t]he amended complaint must be specific
and must provide a nexus between each named defendant,
plaintiff's exercising of his [constitutional] right and the
resulting retaliation.” Id.
Plaintiff filed an Amended Complaint on July 2, 2008 and
defendants thereafter moved to dismiss. In an order dated
February 18, 2009, the Court extended plaintiff's time to
respond to March 31, 2009. (Doc. # 20.) To date, the Court
has received no response from plaintiff.
DISCUSSION
A. Rule 12(b)(6)
A pro se complaint is reviewed under a more lenient standard
than that applied to “formal pleadings drafted by lawyers.”
Haines v. Kerner. 404 U.S. 519, 520 (1972) (per curiam).
Plaintiffs' pro se pleadings “must be read liberally and
should be interpreted ‘to raise the strongest arguments that
they suggest.’ “ Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir.1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir.1994)).
Rule 8(a) (2), Fed.R.Civ.P., requires only “a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, ____, 127 S.Ct. 1955, 1964
(2007) (quotation omitted) (alteration in original). When a
defendant tests the sufficiency of a complaint by a motion
under Rule 12(b)(6), “[t]o survive dismissal, the plaintiff
must provide the grounds upon which his claim rests through
factual allegations sufficient ‘to raise a right to relief above
the speculative level.’ “ ATSI Commc'ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Twombly, 127
S.Ct. at 1965) (footnote omitted). The complaint is measured
against a “flexible ‘plausibility standard,’ which obligates a
pleader to amplify a claim with some factual allegations in
those contexts where such amplification is needed to render
the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157–
58 (2d Cir.2007) (emphasis in original), cert. granted, 128
S.Ct. 2931 (2008). This “does not require heightened fact
pleading of specifics, [but] it does require enough facts to
‘nudge [plaintiff's] claims across the line from conceivable to
plausible.’ “ In re Elevator Antitrust Litig ., 502 F.3d 47, 50
(2d Cir.2007) (quoting Twombly, 127 S.Ct. at 1974) (footnote
omitted); see also Erickson v. Pardus. 551 U .S. 89, ____, 127
S.Ct. 2197, 2200 (2007) (per curiam).
B. Section 1983
*3 To state a claim for the violation of civil rights under
42 U.S.C. § 1983, plaintiff must allege “that state officials,
acting under color of state law, deprived [him] of a right
guaranteed [to him] by the Constitution or laws of the
United States. Moreover, defendants' actions at that time
must have been objectively unreasonable in light of clearly
established federal law; otherwise, those actors are entitled
to qualified immunity.” Rodriguez v. Phillips, 66 F.3d 470,
473 (2d Cir.1995). For the reasons explained below, plaintiff's
Amended Complaint, construed liberally to raise the strongest
arguments it suggests, fails to state a claim under § 1983.
Thus, the Court need not address qualified immunity.
1. Verbal Harassment
Verbal harassment and name calling, absent physical injury,
are not constitutional violations cognizable under § 1983.
See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986)
(per curiam); Aziz Zarif Shabazz v. Pico. 994 F.Supp. 460,
474 (S.D.N.Y.1998) (“verbal harassment or profanity alone,
unaccompanied by any injury no matter how inappropriate,
unprofessional, or reprehensible it might seem, does not
constitute the violation of any federally protected right
and therefore is not actionable under 42 U.S.C. § 1983”)
(quotation omitted); see also Rivera v. Goord, 119 F.Supp.2d
327, 342 (S.D.N.Y.2000) (collecting cases). Plaintiff alleges
that Officer Rivera verbally harassed him by calling him
“a rat, snitch and a homosexual.” (A.C. at 1.) Plaintiff also
alleges that Captain Matthew threatened to tamper with
plaintiff's food while plaintiff was in lock up. (Id at 3.)
These instances of verbal harassment, standing alone, are
insufficient as a matter of law to state a claim for relief under
§ 1983.
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2. Failure to Protect / Excessive Force
Construing the Amended Complaint liberally, it can also be
read to allege an infliction of cruel and unusual punishment.
Where, as here, the prisoner was a pre-trial detainee,
“the relevant constitutional provision is not the Eighth
Amendment but is, instead, the Due Process Clause” because
the Eighth Amendment only applies where there has been a
“formal adjudication of guilt.” City of Revere v. Mass. Gen.
Hosp., 463 U.S. 239, 244 (1983). The Second Circuit has
held that an “unconvicted detainee's rights are at least as
great as those of a convicted prisoner.” Weyant v. Okst. 101
F.3d 845, 856 (2d Cir.1996). Thus, the analysis is the same
under the Due Process Clause as it would be under the Eighth
Amendment. See Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d
Cir.2000); Brewster v. Nassau County, 349 F.Supp.2d 540,
552 (E .D.N. Y.2004).
The Eighth Amendment imposes duties on prison officials,
who must provide “humane conditions of confinement,”
including taking “reasonable measures to guarantee the safety
of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832
(1994) (quotation omitted). Not “every injury suffered by
one prisoner at the hands of another,” however, “translates
into constitutional liability for prison officials responsible
for the victim's safety.” Id. at 834. A prisoner establishes a
violation of the Eighth Amendment only if he satisfies two
requirements. First, the plaintiff must establish that his injury
has been “objectively, sufficiently serious” to have denied
him “the minimal civilized measure of life's necessities.” Id.
(quotation omitted). Second, the prison official must have had
“ ‘a sufficiently culpable state of mind’ amounting to at least
deliberate indifference.” Dawes v. Walker, 239 F.3d 489, 494
(2d Cir.2001) (quoting Farmer, 511 U.S. at 834), overruled
on other grounds, Swierkiewicz v. Sorema N .A., 534 U.S. 506
(2002). Deliberate indifference exists when the prison official
“knows of and disregards an excessive risk to inmate health
or safety.” Farmer, 511 U.S. at 837.
*4 “[T]he spreading of rumors [by a corrections officer]
alone does not amount to a constitutional violation.” Williams
v. Mullen 98 Civ. 5204(BSJ), 2001 WL 936297, at *4
(S.D.N.Y. Aug. 17, 2001). But a prisoner can state a
claim under the Eighth Amendment against a corrections
officer who spreads malicious rumors about him if the
rumors “incited other inmates to assault [the plaintiff] ...,
thereby placing him at grave risk of physical harm.” Young
v. Coughlin, 93 Civ. 262(DLC), 1998 WL 32518, at *7
(S.D.N.Y. Jan. 29, 1998). However, if the plaintiff fails to
allege—with concrete facts, not conclusory assertions—that
he has suffered an objectively “sufficiently serious” injury or
that the corrections officer acted with a “sufficiently culpable
state of mind,” then the claim must be dismissed. See, e.g.,
Dawes, 239 F.3d at 493 (“[Plaintiff] does nothing more than
state in conclusory terms that the references to him as an
‘informant’ and a ‘rat’ ... opened him up to assault from
his fellow inmates .... Absent some factual showing that
the comments by the prison officials actually risked inciting
other inmates against [plaintiff], we are unwilling simply to
assume that prison inmates would be incited ... to attack
‘one of their own’ who was labeled an ‘informant’ and
a ‘rat’ ”); Young, 1998 WL 32518, at *6–*8 (dismissing
claim that corrections officer “directed other inmates to
sexually harass and ‘jump’ [plaintiff]” because the officer's
“comments were not ‘objectively, sufficiently serious' to
state an Eighth Amendment violation” and plaintiff had
failed to “allege harm of federal constitutional magnitude”);
Brewster, 349 F.Supp.2d at 552–53 (dismissing for failure
to state a claim complaint alleging that corrections officers
“subjected [plaintiff] to ‘abusive language, gestures, taunts,
jeers, laughter, and harassment,’ and spread false rumors
among other inmates that [plaintiff] is a homosexual, thief,
or rapist”); Walsh v. Goord, 07 Civ. 0246(CGS), 2007 WL
1572146, at * 10 (W.D.N.Y. May 23, 2007) (holding that
prisoner failed to state a claim where he “allege[d] that he
was identified [by corrections officers] as a snitch and a child
molester and that, as a result, he was subjected to assaults
and rape at the hands of other inmates”; but granting leave to
replead).
Plaintiff's allegations fail to meet either the objective or
subjective standards necessary to state a claim under the
Eighth Amendment against Officer Rivera. To satisfy the
objective prong, plaintiff must “establish the deprivation of
a basic human need such as reasonable safety,” Benjamin v.
Fraser, 343 F.3d 35, 51 n. 17 (2d Cir.2003) (quoting Lewis
v. Casey, 518 U.S. 343, 350 (1996)), due to Officer Rivera's
creation of “a substantial risk of serious harm.” Farmer, 511
U.S. at 834. Here, plaintiff has alleged only that, one night, he
endured about three and a half hours of inmates calling him
a snitch and a homosexual, and that during the remainder of
the week, inmates continued to “tortur[e] [plaintiff] with such
abusive words, stating and calling [him] a snitch.” (A.C. at
1.) Plaintiff has not alleged any facts that, if proven, would
establish that he ever faced actual or imminent harm. The
Court is “unwilling simply to assume” that such a risk existed
merely because Officer Rivera spread rumors about him.
Dawes, 239 F.3d at 493. Thus, plaintiff has failed to allege an
injury that was sufficiently serious by objective standards.
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*5 To satisfy the subjective prong, plaintiff must allege that
Officer Rivera acted “maliciously and sadistically to cause
harm” or, at least, was deliberately indifferent to “an excessive
risk to inmate health or safety.” See Trammell v. Keane,
338 F.3d 155, 162–63 (2d Cir.2003); Phelps v. Kapnolas,
308 F.3d 180, 185–86 (2d Cir.2002). As Chief Judge Wood
explained, plaintiff's mere allegation that Officer Rivera
spread rumors about him was insufficient to show that she
had the requisite culpable state of mind. See June 6 Order at
2–3. Plaintiff's Amended Complaint is similarly insufficient
because he has not “ampli[fied] [his] claim with some
factual allegations ... needed to render the claim plausible.”
Iqbal, 490 F.3d at 157–58 (emphasis in original). Plaintiff
alleges that “Officer Rivera incited such gang members to
get me out of the housing area, because of her personal
dislike[ ] of homosexuals, and snitches.” (A.C. at 1.) But
none of plaintiff's allegations, if proven, would establish that
Officer Rivera intended to incite inmates to harm plaintiff
physically. Nor has plaintiff alleged that Officer Rivera knew
and disregarded the fact that her comments had created an
environment that subjected plaintiff to a significant risk of
injury. Thus, plaintiff has failed to allege that Officer Rivera
acted with the requisite culpable state of mind.
To the extent that the Amended Complaint can be construed
liberally to allege claims under the Eighth Amendment
against Warden Shaw and Captain Matthew, these claims
must also be dismissed. Plaintiff has failed to allege any
objectively “sufficiently serious” injury that resulted from
Captain Matthew's threat that he would tamper with plaintiff's
food (A.C. at 3) or Warden Shaw's refusal to speak with
plaintiff (id. at 2). Plaintiff also has not alleged sufficient
facts to make out a plausible claim that Warden Shaw was
deliberately indifferent to an excessive risk of harm faced
by plaintiff. Plaintiff alleges that after he wrote to Warden
Shaw regarding Officer Rivera's verbal harassment, plaintiff
was transferred to a different housing unit. (Id.) This indicates
that Warden Shaw responded to his grievance. Thus, the
allegations in the Amended Complaint fail to state a claim
under the Eighth Amendment.
3. Retaliation
The Amended Complaint may be construed liberally to allege
that Officer Rivera retaliated against plaintiff in violation of
his rights under the First Amendment. After plaintiff filed a
grievance against Officer Rivera, she wrote up plaintiff for an
infraction. (Id. at 2.) Plaintiff alleges that “she wrote me up for
revenge.” (Id. at 16.) A “prison inmate has no constitutionally
guaranteed immunity from being falsely or wrongly accused
of conduct which may result in the deprivation of a protected
liberty interest.” Freeman v. Rideout, 808 F.2d 949, 951 (2d
Cir.1986). “There must be more, such as retaliation against
the prisoner for exercising a constitutional right.” Boddie v.
Schnieder. 105 F.3d 857, 862 (2d Cir.1997). In order to prevail
on a retaliation claim, a plaintiff bears the burden to prove,
“first, that he engaged in constitutionally protected conduct
and, second, that the conduct was a substantial or motivating
factor for the adverse actions taken by prison officials.”
Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003). Thus, there
must be “a causal connection between the protected speech
and the adverse action.” Gill v. Pidlypchak, 389 F.3d 379,
380 (2d Cir.2004) (quotation omitted). Prisoners' claims of
retaliation must be examined with “skepticism and particular
care,” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995),
because they are “ ‘Prone to abuse’ since prisoners can claim
retaliation for every decision they dislike.” Graham, 89 F.3d
at 79 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d
Cir.1983)).
*6 Plaintiff has failed to allege the requisite causal
connection between his filing of a grievance and Officer
Rivera's writing him up for an infraction. As Chief Judge
Wood explained, plaintiff's assertion that Officer Rivera
“wrote me up for revenge” (A.C. at 16) is conclusory. June
16 Order at 3. Plaintiff has not alleged any facts that would
establish that Officer Rivera was motivated by plaintiff's
filing of a grievance against her. Plaintiff's mere speculation
is insufficient. In fact, plaintiff alleges that as Officer Rivera
was writing him up, she was saying, “If the inmates didn't
get you out of the house, I will get you out, you snitch gay,
homosexual.” (Id. at 2.) This tends to show that Officer Rivera
was motivated by her personal dislike of plaintiff, not that
she was reacting to his filing of a grievance. Indeed, Officer
Rivera had exhibited verbal hostility toward plaintiff since
April 2007, before he ever filed a grievance. (Id. at 1.) Thus,
plaintiff has failed to allege facts sufficient to state a plausible
claim of retaliation in violation of his rights under the First
Amendment.
C. PLRA
There is an independent basis for dismissing plaintiff's claims
seeking compensatory damages for mental and emotional
injuries. The Prison Litigation Reform Act of 1995 (“PLRA”)
states in relevant part: “No Federal civil action may be
brought by a prisoner ... for mental or emotional injury
suffered while in custody without a prior showing of
physical injury.” 42 U.S.C. § 1997e(e). In the section of his
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Amended Complaint titled “Injuries,” plaintiff states: “she
infliction [sic] of emotional distress and pain and suffering
compensatory damages punitive damages.” (A.C. at 16.)
And in the section seeking relief, plaintiff “request[s] ... as
follows[:] mental damages, compensatory damages, punitive
damages, emotional distress, award me in the amount of
$1,000,000.00 dollars.” (Id. at 18.) Because plaintiff has not
alleged that he suffered any physical injury in connection with
defendants' alleged infliction of emotional distress, his claims
seeking compensatory damages for mental or emotional
injuries must be dismissed under the PLRA,
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss for
failure to state a claim is granted. To the extent the Amended
Complaint raises state law claims, the Court declines to
exercise supplemental jurisdiction over them. 28 U.S.C. §
1367(c)(3). The Clerk shall enter judgment for defendants.
Defendants are directed to provide plaintiff with copies of all
unpublished opinions cited herein.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2009 WL 969932
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Bouknight v. Shaw
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Filings (1)
Title PDF Court Date Type
1. Docket 1:08cv05187
BOUKNIGHT v. SHAW ET AL
— S.D.N.Y. June 06, 2008 Docket
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Robinson v. Taylor, Not Reported in Fed. Supp. (2017)
2017 WL 4174795
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2017 WL 4174795
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Rendell ROBINSON, Plaintiff,
v.
James TAYLOR, et al., Defendants.
Civ. No. 9:16-CV-0285 (BKS/DJS)
|
Signed 08/24/2017
Attorneys and Law Firms
RENDELL ROBINSON, 07-A-6175, Five Points
Correctional Facility, Caller Box 119, Romulus, New York
14541, Plaintiff, Pro Se.
HON. ERIC T. SCHNEIDERMAN, OF COUNSEL:
RICHARD LOMBARDO, ESQ., Assistant Attorney
General, The Capitol Albany, New York 12224, Attorney
General of the State of New York, Attorney for Defendant.
REPORT-RECOMMENDATION and ORDER
Daniel J. Stewart, U.S. Magistrate Judge
*1 Pro se Plaintiff Rendell Robinson commenced this civil
rights action, pursuant to 42 U.S.C. § 1983, asserting claims
arising from his incarceration at Great Meadow Correctional
Facility (“Great Meadow”) in the custody of the Department
of Corrections and Community Supervision (“DOCCS”).
Dkt. No. 1, Compl. Presently before the Court is Defendants'
Motion, brought pursuant to FED. R. CIV. P. 12(c), to dismiss
Plaintiff’s Eighth Amendment medical indifference claims
against Defendants Kimberly Lipka, Ted Nesmith, David
Karandy, Raymond Maddocks, Kalyana Battu, and Leon
Renaud. 1 Dkt. No. 37, Defs.' Mot. Dismiss. Plaintiff elected
not to respond to Defendants' Motion. Dkt. No. 40. For the
reasons that follow, the Court recommends that Defendants'
Motion be granted in part and denied in part.
1 Defendants Ted Nesmith, Raymond Maddocks,
and Kalyana Battu are listed on the docket as
“Fischer Nesmith,” “Haddocks,” and “K. Rattu.”
Based upon Defendants' Answer, however, these
Defendants correct names are Ted Nesmith,
Maddocks, and Battu, and they will be referred to
as such. See Dkt. No. 36. The Clerk of the Court is
directed to amend the caption accordingly.
I. STANDARD OF REVIEW
“The standard for granting a [FED. R. CIV. P.] 12(c) motion
for judgment on the pleadings is identical to that of a [FED.
R. CIV. P.] 12(b)(6) motion for failure to state a claim.” Patel
v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126
(2d Cir. 2001).
On a motion to dismiss, the allegations of the complaint must
be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322
(1972). The trial court’s function “is merely to assess the legal
feasibility of the complaint, not to assay the weight of the
evidence which might be offered in support thereof.” Geisler
v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). “The issue is
not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on
other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).
The court is bound to give the plaintiff the benefit of every
reasonable inference to be drawn from the “well-pleaded”
allegations of the complaint. See Retail Clerks Int'l Ass'n,
Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754
(1963). Nevertheless, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Therefore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation omitted).
A motion to dismiss pursuant to Rule 12(b)(6) may not be
granted so long as the plaintiff’s complaint includes “enough
facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft
v. Iqbal, 556 U.S. at 697 (citing Twombly). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. at 678. This plausibility standard “is not
akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.”
Id. In this respect, to survive dismissal, a plaintiff “must
provide the grounds upon which his claim rests through
factual allegations sufficient ‘to raise a right to relief above
the speculative level.’ ” ATSI Commc'ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp.
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v. Twombly, 440 U.S. at 555). Thus, in spite of the deference
the court is bound to give to the plaintiff’s allegations, it
is not proper for the court to assume that “the [plaintiff]
can prove facts [which he or she] has not alleged, or that
the defendants have violated the ... laws in ways that have
not been alleged.” Assoc. Gen. Contractors of Cal., Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
The process of determining whether a plaintiff has “nudged
[his] claims ... across the line from conceivable to plausible,”
entails a “context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. at 679-80.
*2 Where, as here, the complaint was filed pro se, it must be
construed liberally with “special solicitude” and interpreted to
raise the strongest claims that it suggests. Hill v. Curcione, 657
F.3d 116, 122 (2d Cir. 2011). Nonetheless, a pro se complaint
must state a plausible claim for relief. See Harris v. Mills, 572
F.3d 66, 73 (2d Cir. 2009).
“Generally, in determining a 12(b)(6) motion, the court
may only consider those matters alleged in the complaint,
documents attached to the complaint, ... matters to which
the court may take judicial notice[,]” as well as documents
incorporated by reference in the complaint. Spence v.
Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997)
(citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d
Cir. 1991)); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d
42, 47 (2d Cir. 1991) (citing FED. R. CIV. P. 10(c)).
II. SUMMARY OF THE COMPLAINT
The Court here summarizes, and in accordance with the
applicable standard accepts as true, only those allegations
contained in the Complaint that are relevant to the
determination of Defendants' Motion. For a more complete
summary of Plaintiff’s factual allegations, the Court refers to
the Complaint, as well as the initial screening in this action,
conducted pursuant to 28 U.S.C. §§ 1915(e) and 1915A by
the Honorable Gary L. Sharpe, Senior United States District
Judge. Compl.; Dkt. No. 7, Dec. & Order, dated May 20,
2016, at pp. 4-10.
Plaintiff has been diagnosed with post-traumatic stress
disorder, depression, and anti-social personality disorder, and
receives psychotropic drugs. Compl. at ¶ 36. 2 On March 12,
2013, Plaintiff was housed in the long-term keeplock unit at
Great Meadow. Id. at ¶¶ 25-27. When the mental health nurse
came to his cell to give him his daily medication, Plaintiff told
her that “he felt like killing himself.” Id. at ¶ 38. Defendant
Correction Officer (“C.O.”) St. John, who was escorting the
nurse, told Plaintiff that he was going to be moved to an
observation (“OBS”) cell for suicide watch. Id. Plaintiff then
explained that he was only playing and that he did not want
to kill himself. Id. at ¶ 39.
2 Plaintiff’s Complaint is filed on the Court’s Case
Management Electronic Case Files (“CM/ECF”)
System in two parts at Dkt. No. 1 and Dkt. No. 1-1.
The Court will cite to the Complaint’s paragraph
numbers, which continue consecutively throughout
the two parts.
Shortly thereafter, a number of correction officers arrived at
Plaintiff’s cell to escort him to an OBS cell. Id. at ¶¶ 45-46.
While he was being escorted to the OBS cell, the correction
officers assaulted Plaintiff by dragging and slamming him on
the ground, striking him with closed fists, slamming his face
into a fence, choking him, and twisting his hands and feet. Id.
at ¶¶ 53-54, 59-60, & 63-65.
Following the assault, Plaintiff was taken to the facility
infirmary, where he was examined by Defendant Nesmith,
a physician’s assistant (“P.A.”). Id. at ¶¶ 66-67. Plaintiff
sustained the following injuries in the assault: head trauma,
including contusions and chronic migraines; a “closed left
eye” and “chronic eyeball pain”; pain and loss of hearing in
his left ear; neck pain and cramps; right shoulder and arm
pain; back pain and muscle spasms; lacerations and bruise
marks; left leg pain; and a swollen left ankle and foot. Id. at ¶
68. Nesmith failed to document any of Plaintiff’s injuries in
his medical records and failed to provide any treatment. Id.
at ¶ 67.
*3 Plaintiff was taken from the infirmary to the Special
Housing Unit (“SHU”), where he again indicated that he was
feeling suicidal. Id. at ¶ 69. Plaintiff was then taken to an OBS
cell, where he stayed for the next eight days until March 20,
2013. Id. at ¶¶ 70 & 105. During that period, Defendants C.O.
Therrian and C.O. Renaud denied Plaintiff any food, as well
as access to showers and mental health treatment. See id. at
¶¶ 81 & 105. Therrian and Renaud also made false log book
entries indicating that Plaintiff was refusing meals and mental
health treatment. Id. at ¶ 91.
On March 13 or 14, 2013, Plaintiff spoke with Defendant
Battu, a psychiatrist, id. at ¶ 21, regarding the assault
by correctional staff and the emotional distress he was
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experiencing. Id. at ¶ 82. Plaintiff told Dr. Battu that he
would attempt suicide if he was returned to SHU. Id. at ¶
84. Dr. Battu told Plaintiff to file a grievance complaint on
his allegations against correctional staff and ordered him to
be discharged from the Mental Health Unit for suicide watch
and returned to SHU. Id. at ¶ 87. Plaintiff was escorted to
SHU, but was returned to the Mental Health Unit when he
indicated signs of suicidal behavior on the SHU screening
questionnaire. Id. at ¶ 89.
On March 13, 2014, Plaintiff was seen by Defendants Nurse
Lipka and P.A. Nesmith for pain in his head, ear, eye, face,
neck, legs, and foot. Id. at ¶ 158-59. Lipka and Nesmith
refused to give Plaintiff ice or ibuprofen, or to have x-rays
taken. Id. at ¶ 159-60. On March 15, 2013, Plaintiff was seen
by Defendant Dr. Maddocks, who also refused to provide pain
medication or order x-rays, in spite of Plaintiff’s complaints
of pain. Id. at ¶¶ 160-61.
On March 19, 2013, Dr. Battu again discharged Plaintiff from
the Mental Health Unit, although he did not even meet with
Plaintiff. Id. at ¶ 95. Plaintiff, however, again did not pass
the SHU suicide prevention screening and was returned to the
Mental Health Unit. Id. at ¶ 96. The evening of March 19,
Plaintiff began to feel weak from not having eaten for seven
days, and his legs buckled and he fell to the floor. Id. at ¶ 98.
Plaintiff’s legs and arms felt numb and he was lightheaded. Id.
at ¶¶ 99 & 101. Defendants Renaud and Sergeant W. observed
Plaintiff lying on floor and asked him what happened. Id.
at ¶¶ 100-01. Plaintiff requested medical attention, but the
Defendants ignored his request. Id. at ¶ 102.
On March 20, 2013, Plaintiff was seen by Dr. Battu, and
he continued to express that he was experiencing suicidal
thoughts. Id. at ¶¶ 106 & 115. Plaintiff requested that he
be placed in mental health program where he would receive
mental health treatment, and Dr. Battu said that he would
discuss that request with Plaintiff’s treatment team. Id. at ¶¶
116-17. As Plaintiff was walking back to his OBS cell, his legs
again buckled and he fell to the floor. Id. at ¶ 118. Defendants
Lieutenant John Doe and Sergeant W., who were escorting
Plaintiff, did not notify medical staff that Plaintiff had fallen,
but instead dragged him on the floor back to his OBS cell,
causing injuries to his head, legs, feet, and shoulder. Id. at ¶¶
121-22.
On March 20, 2013, Dr. Battu ordered Plaintiff to be
discharged from the Mental Health Unit. Id. at ¶ 125. Plaintiff
was escorted in a wheelchair to the SHU intake room,
where he again indicated during the screening process that
he would kill himself if he was admitted to SHU. Id. at ¶¶
127-28. A nurse then conducted a medical examination. Id.
at ¶ 129. Despite being notified that Plaintiff was suffering
from numerous injuries, had not had any food for eight
days straight, and was unable to ambulate, Defendant Dr.
Karanady, the Health Services Director at Great Meadow, id.
at ¶ 133, cleared Plaintiff to be admitted to the SHU instead
of ordering Plaintiff to be brought to the infirmary. Id. at ¶¶
134-35.
*4 Plaintiff was taken from the intake room to a SHU
cell. Id. at ¶ 139. Approximately ten minutes later, Plaintiff
attempted suicide and was found hanging from a sheet in
his cell. Id. at ¶ 146. Plaintiff was cut down and taken on a
stretcher to the infirmary emergency room where he was seen
by Defendants Dr. Karandy and Nurse Lipka. Id. at ¶¶ 140-42.
Plaintiff repeated his complaints of neck, eye, facial, back,
and foot pain, and reported the two incidents where his legs
had given out. Id. at ¶¶ 143-44. Dr. Karandy directed Plaintiff
to walk to the x-ray room, but Plaintiff explained that he was
unable to walk due to numbness in his legs and requested
a wheel chair. Id. at ¶¶ 145-46. Dr. Karandy responded that
Plaintiff would only get x-rays if he walked to the x-ray
room, despite Plaintiff’s complaints of leg numbness and
the fact that Plaintiff’s legs were shackled. Id. at ¶¶ 147-48.
Plaintiff attempted to walk to the x-ray room, but Dr. Karandy
falsely recorded that Plaintiff was being uncooperative and
had refused x-rays. Id. at ¶¶ 152-53. Plaintiff also requested
ibuprofen and ice, but the Defendants denied that request.
Id. at ¶¶ 150-51. Plaintiff was discharged from the infirmary
without receiving any medical treatment. Id. at ¶ 154.
Plaintiff was admitted to the Mental Health Unit for five more
days. Id. at ¶¶ 155-56. He did not see Dr. Battu during this
period because Defendant Therrian falsely reported that he
would not come out of his cell. Id. at ¶ 156.
On March 27, 2013, Plaintiff received an inmate misbehavior
report, charging Plaintiff with multiple counts of misconduct
during the March 12, 2013 incident. Id. at ¶ 162. Following
a Tier III Disciplinary Hearing, id. at ¶ 163, Plaintiff was
found guilty of certain of the charges and sentenced to six
months confinement in SHU, six months loss of privileges,
six months loss of good time credits. Id. at ¶ 174.
The following claims survived the initial screening conducted
by Judge Sharpe: (1) Eighth Amendment excessive force
and/or failure to protect claims against Defendants Taylor,
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St. John, Prieur, Lashinsky, and Goodman; 3 (2) Eighth
Amendment medical indifference claims against Defendants
Lipka, Nesmith, Karandy, Maddocks, Battu, and Renaud; 4
(3) Fourteenth Amendment due process claim against
Defendant Quinn; and (4) Eighth Amendment conditions-of-
confinement claims against Defendants Therrian and Renaud.
Dec. & Order, dated May 20, 2016, at p. 22.
3 Plaintiff’s Eighth Amendment excessive force
claims against Defendants Lieutenant John Doe
and Sergeant W. also survived initial review. Dec.
& Order, dated May 20, 2016, at p. 22.
4 Plaintiff’s Eighth Amendment medical
indifference claims against Defendants Lieutenant
John Doe, Sergeant W., and John Doe (Area
Supervisor for Great Meadow SHU) also survived
initial review. Dec. & Order, dated May 20, 2016,
at p. 22.
III. DISCUSSION
Defendants Lipka, Nesmith, Karandy, Maddocks, Battu, and
Renaud move to dismiss Plaintiff’s Eighth Amendment
medical indifference claims for failure to state a claim upon
which relief can be granted. Alternatively, Defendants argue
that they are entitled to qualified immunity from Plaintiff’s
medical indifference claims.
A. Legal Standard
To state an Eighth Amendment claim for denial of adequate
medical care, a prisoner must demonstrate that prison officials
acted with “deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976). “[T]he plaintiff
must allege conduct that is ‘repugnant to the conscience of
mankind’ or ‘incompatible with the evolving standards of
decency that mark the progress of a maturing society.’ ” Ross
v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d
896 (2d Cir. 1992) (quoting Estelle v. Gamble, 429 U.S. at
102, 105-06). To state a claim for denial of medical care, a
prisoner must demonstrate (1) a serious medical condition and
(2) deliberate indifference. Farmer v. Brennan, 511 U.S. 825,
834-35 (1994); Hathaway v. Coughlin (“Hathaway I”), 37
F.3d 63, 66 (2d Cir. 1994).
The first prong is an objective standard and considers whether
the medical condition is “sufficiently serious.” Farmer v.
Brennan, 511 U.S. at 834 (quoting Wilson v. Seiter, 501
U.S. 294, 297 (1991)). A court must consider two inquiries
in determining whether a deprivation of care is sufficiently
serious. Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.
2006). First, the court must determine “whether the prisoner
was actually deprived of adequate medical care.” Id. Medical
care is adequate where the care provided is a “reasonable”
response to the inmate’s medical condition. Id. The second
inquiry is “whether the inadequacy in medical care is
sufficiently serious.” Id. at 280. In cases where there is a
failure to provide any treatment, the court examines whether
the inmate’s medical condition is sufficiently serious. Smith
v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). The
Second Circuit has stated that a medical need is serious
if it presents “a condition of urgency that may result in
degeneration or extreme pain.” Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and
citation omitted). Among the relevant factors to consider are
“[t]he existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment;
the presence of a medical condition that significantly affects
an individual’s daily activities; or the existence of chronic
and substantial pain.” Id. (quoting McGuckin v. Smith, 974
F.2d 1050, 1059-60 (9th Cir. 1992)). In cases where medical
treatment is given, but is inadequate, “the seriousness inquiry
is narrower.” Salahuddin v. Goord, 467 F.3d at 280. “For
example, if the prisoner is receiving on-going treatment and
the offending conduct is an unreasonable delay or interruption
in that treatment, the seriousness inquiry ‘focus[es] on the
challenged delay or interruption in treatment rather than the
prisoner’s underlying medical condition alone.’ ” Id. (quoting
Smith v. Carpenter, 316 F.3d at 185).
*5 The second prong is a subjective standard requiring
a plaintiff to demonstrate that the defendant acted with
the requisite culpable mental state similar to that of
criminal recklessness. Wilson v. Seiter, 501 U.S. at 301-03;
Hathaway I, 37 F.3d at 66. A plaintiff must demonstrate
that the defendant acted with reckless disregard to a known
substantial risk of harm. Farmer v. Brennan, 511 U.S. at 836.
This requires “something more than mere negligence ... [but]
something less than acts or omissions for the very purpose
of causing harm or with knowledge that harm will result.”
Id. at 835; see also Weyant v. Okst, 101 F.3d 845, 856 (2d
Cir. 1996) (citing Farmer v. Brennan, 511 U.S. at 835).
Further, a showing of medical malpractice is insufficient to
support an Eighth Amendment claim unless “the malpractice
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involves culpable recklessness, i.e., an act or a failure to act
by the prison doctor that evinces ‘a conscious disregard of
a substantial risk of serious harm.’ ” Chance v. Armstrong,
143 F.3d at 702 (quoting Hathaway v. Coughlin (“Hathaway
II”), 99 F.3d 550, 553 (2d Cir. 1996)); see also Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citations omitted).
B. Analysis
1. Defendants Lipka, Nesmith, Karandy, and Maddocks
Liberally construing the Complaint, Plaintiff asserts that
Defendants Lipka, Nesmith, Karandy, and Maddocks violated
his Eighth Amendment rights by denying him any medical
treatment for the injuries he incurred in the March 12, 2013
incident. The Defendants argue that Plaintiff has failed to
allege an objectively serious condition or that any of them
failed to act with sufficiently culpable state of mind. Dkt. No.
37-1, Defs.' Mem. of Law at pp. 6-9.
At the objective prong, Plaintiff alleges a number of injuries
that he suffered during the alleged March 12 assault. See
Compl. at ¶ 68. These include migraines; pain in his eyes,
neck, shoulder, back, arm, and leg; a closed left eye; pain
and loss of hearing in his left ear; lacerations, bruising, and
contusions. Id. Defendants argue that even if Plaintiff did
suffer from these conditions, they would not amount to an
objectively serious medical condition. Defs.' Mem. of Law
at pp. 6-7. While Defendants are correct that courts have
found that conditions such as cuts, bruises, and scrapes do
not constitute a sufficiently serious medical condition, see,
e.g., Dallio v. Herbert, 678 F. Supp. 2d 35, 44-45 (N.D.N.Y.
July 28, 2009), construing Plaintiff’s allegations liberally, he
suffered more than cuts and bruises in the assault. Among
his allegations, Plaintiff alleges that his left eye was swollen
closed, and that he had ringing and loss of hearing in his
left ear. Compl. at ¶ 68. Plaintiff further alleges that he had
“chronic” pain in his eye, neck, shoulder, back, arm, and leg.
Id. Although Plaintiff’s allegations are vague and lack detail,
viewing them in the most favorable light, the combination of
Plaintiff’s alleged symptoms is sufficient at this stage to plead
the objective prong of an Eighth Amendment claim. See, e.g.,
Ellis v. Guarino, 2004 WL 1879834, at *11 (S.D.N.Y. Aug.
24, 2004) (finding that allegations of, inter alia, blurred vision
and dizziness and ringing in ears were sufficient to plead a
serious medical condition).
Next, under the subjective prong, Defendants argue that
Plaintiff has failed to allege that Defendants Lipka, Nesmith,
Karandy, or Maddocks acted with a sufficiently culpable state
of mind. Defs.' Mem. of Law at pp. 7-9. As to each of these
Defendants, however, Plaintiff has alleged that they refused
to provide him with any medical treatment after he informed
them of his injuries. See Compl. at ¶¶ 134-35, 144-47, 151,
& 159-61. “Deliberate indifference ... is properly pleaded
by allegations ... of ‘complete denial’ of medical treatment.”
Harding v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y.
1984).
*6 As stated above, Defendants also argue that they
are entitled to qualified immunity from Plaintiff’s medical
indifference claims. Defs.' Mem. of Law at pp. 13-15.
The doctrine of qualified immunity shields public officials
from suit for conduct undertaken in the course of their
duties if it “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity analysis involves a three step inquiry:
First, we must determine whether
plaintiff has alleged a violation
of a constitutional right. Then,
we must consider if the violated
right was clearly established at the
time of the conduct. Finally, if
plaintiff had a clearly established,
constitutionally protected right that
was violated ..., he or she must
demonstrate that defendants' actions
were not objectively reasonable.
Harhay v. Town of Ellington Bd. of Educ., 323 F.3d
206, 211 (2d Cir. 2003) (citations omitted). As the Court
has already discussed, Plaintiff has sufficiently alleged
his medical indifference claim against Defendants Lipka,
Nesmith, Karandy, and Maddocks. Furthermore,“the right
to be free from deliberate indifference to serious medical
needs” was clearly established at the time of the events of
this action. 5 See LaBounty v. Coughlin, 137 F.3d 68, 74
(2d Cir. 1998) (citing Estelle v. Gamble, 429 U.S. at 104).
Thus, Defendants' entitlement to qualified immunity turns on
whether it was objectively reasonable for them to believe
that their actions did not violate Plaintiff’s constitutional
rights. However, resolution of the objective reasonableness of
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Defendants' actions “depends on the determination of certain
factual questions that cannot be answered at this stage of
the litigation.” Denton v. McKee, 332 F. Supp. 2d 659, 666
(S.D.N.Y. 2004).
5 Defendants argue that it was neither clearly
established that the conditions Plaintiff alleges he
suffered from constituted a serious medical need,
nor that the acts Defendants allegedly engaged in
could constitute deliberate indifference. See Defs.'
Mem. of Law at pp. 14-15. However, while the
contours of the right “must be sufficiently clear that
a reasonable official would understand that what
he is doing violates that right[,] [t]his is not to
say that an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful, but it is to say that
in light of pre-existing law the unlawfulness must
be apparent.’ ” Hope v. Pelzer, 536 U.S. 730, 739
(2002) (citations omitted). The right Plaintiff is
alleging was violated is his “right to be free from
deliberate indifference to serious medical needs.”
LaBounty v. Coughlin, 137 F.3d at 74 (explaining
that the district court took an overly “restricted
view of the right” and “conflate[d] the specific
conduct at issue with the defined right”); see also
Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir.
1996) (“A court need not have passed on the
identical course of conduct in order for its illegality
to be ‘clearly established’ ....”).
Accordingly, the Court recommends that Defendants' Motion
be denied as to Plaintiff’s claims against Defendants Lipka,
Nesmith, Karanady, and Maddocks.
2. Defendant Battu
The basis of Plaintiff’s claim against Defendant Battu is
that Battu violated Plaintiff’s Eighth Amendment rights by
ordering him to be discharged from the Mental Health Unit
when Plaintiff was suffering from emotional distress and told
Battu that he would commit suicide if returned to SHU. See
Dkt. No. 1-1 at pp. 26-28. 6
6 Citation is to the pagination assigned by the Court’s
CM/ECF System.
*7 Defendants first argue that Plaintiff’s allegations are
insufficient to meet the objective prong because emotional
and mental stress do not constitute a serious medical
condition. Defs.' Mem. of Law at p. 9. Although generalized
claims of stress may be insufficient to establish a serious
medical condition, see Blackson v. City of New York, 2014
WL 6772256, at *4 (S.D.N.Y. Dec. 2, 2014), Plaintiff alleges
that he suffers from a number of mental disorders and that he
reported feeling suicidal to Battu, see Compl. at ¶¶ 36, 84,
& 114. Plaintiff further clams that he attempted suicide after
Battu discharged him to SHU. Compl. at ¶ 146. District courts
in this Circuit have recognized that “depression combined
with severe anxiety attacks or suicide attempts is a serious
medical need.” Young v. Choinski, 15 F. Supp. 3d 172,
184 (D. Conn. 2014) (quoting Zimmerman v. Burge, 2009
WL 3111429, at *8 (N.D.N.Y. Sept. 24, 2009)). Therefore,
Plaintiff has adequately alleged that he suffered from a serious
mental health need for the purposes of his Eighth Amendment
claim against Defendant Battu.
Defendants also argue that Plaintiff’s allegations are
insufficient to establish that Defendant Battu acted with
deliberate indifference towards Plaintiff’s complaints of
mental distress. Plaintiff, however, asserts that he repeatedly
expressed suicidal thoughts to Defendant Battu, and that Battu
disregarded Plaintiff’s statements by discharging him from
the Mental Health Unit. Shortly after being discharged from
the Mental Health Unit, Plaintiff claims that he attempted
suicide. Plaintiff’s allegations suggest that Battu recklessly
disregarded a substantial risk of harm to Plaintiff and are
sufficient to satisfy the subjective prong of his Eighth
Amendment claim.
Accordingly, the Court recommends that Defendants' Motion
be denied as to Plaintiff’s Eighth Amendment claim against
Defendant Battu. 7
7 For the same reasons set forth above in connection
with Plaintiff’s claims against Defendants Lipka,
Nesmith, Karandy, and Maddocks, the Court finds
that Defendant Battu’s entitlement to qualified
immunity is not appropriately resolved at this stage
of the proceedings.
3. Defendant Renaud
With respect to Defendant Renaud, Plaintiff alleges that on
the evening of March 19, 2013, he collapsed on account of not
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having received meals for seven straight days. Compl. at ¶ 98.
Plaintiff states that his legs and arms were numb and that he
felt lightheaded. Id. at ¶ 101. Plaintiff claims that Defendant
Renaud saw him lying on the floor, and asked him what
happened, but when Plaintiff requested medical assistance,
Renaud refused to notify medical staff. Id. at ¶¶ 100 & 102.
Plaintiff claims that he was lying on the floor of his cell all
night with aches and pain, and unable to walk. Id. at ¶¶ 103
& 119.
“Non-medical prison personnel engage in deliberate
indifference when they ‘intentionally delayed access to
medical care when the inmate was in extreme pain and has
made his medical problem known to the attendant prison
personnel.’ ” Baumann v. Walsh, 36 F. Supp. 2d 508, 512
(N.D.N.Y. 1999) (quoting Hodge v. Coughlin, 1994 WL
519902, at *11 (S.D.N.Y. Sept. 22, 1994)). For the purposes
of his medical indifference claim against Defendant Renaud,
however, Plaintiff has not alleged a sufficiently serious
medical condition. Plaintiff claims that his legs “buckled,”
and that he felt “weak,” “lightheaded,” and “numb” in his
arms and legs. Compl. at ¶¶ 98 & 101. None of these
symptoms, which were due to not having eaten, suggest
“a condition of urgency that may result in degeneration
or extreme pain.” Chance v. Armstrong, 143 F.3d at 702.
Accordingly, the Court recommends that Defendants' Motion
be granted as to Plaintiff’s Eighth Amendment medical
indifference claim against Defendant Renaud.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants' Motion to Dismiss
(Dkt. No. 37) be GRANTED as to Plaintiff’s Eighth
Amendment medical indifference claim against Defendant
C.O. Leon Renaud and DENIED in all other respects; and it
is further
*8 ORDERED, that the Clerk of the Court amend the
caption of this case to reflect the correct spelling of Defendant
“Haddocks” as Maddocks, Defendant “K. Rattu” as K. Battu,
and Defendant “Fischer Nesmith” as Ted Nesmith; and it is
further
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 8 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
8 If you are proceeding pro se and are served with
this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you
have seventeen days from the date the order was
mailed to you to serve and file objections. FED. R.
CIV. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday.
FED. R. CIV. P. 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2017 WL 4174795
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 297 of 306

Robinson v. Taylor
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Filings (1)
Title PDF Court Date Type
1. Docket 9:16-CV-00285
Robinson v. Taylor et al
— N.D.N.Y. Mar. 10, 2016 Docket
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 298 of 306

Robinson v. Taylor
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. Robinson v. Taylor
2017 WL 4174795 , N.D.N.Y. , Aug. 24, 2017
Report and Recommendation Adopted by
2. Robinson v. Taylor
2017 WL 4174792 , N.D.N.Y. , Sep. 19, 2017
Related References (1)
3. Robinson v. Taylor
2019 WL 1429529 , N.D.N.Y. , Mar. 29, 2019
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 299 of 306

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Date and Time: Wednesday, March 4, 2026 9:44￿AM EST
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Document (1)
1. Phipps v. Gillani, 2013 U.S. Dist. LEXIS 132088
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Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 300 of 306

Chaim Jaffe
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As of: March 4, 2026 2:44 PM Z
Phipps v. Gillani
United States District Court for the Northern District of New York
July 23, 2013, Decided; September 16, 2013, Filed
Civil Action No. 9:10-CV-1588 (TJM/DEP)
Reporter
2013 U.S. Dist. LEXIS 132088 *
RONALD PHIPPS, Plaintiff, v. DR. SOHAIL A.
GILLANI, Defendant.
Subsequent History: Adopted by, Summary
judgment granted by, Dismissed by Phipps v.
Gillani, 2013 U.S. Dist. LEXIS 132086 (N.D.N.Y,
Sept. 16, 2013)
Prior History: Phipps v. Gillani, 2012 U.S. Dist.
LEXIS 10875 (N.D.N.Y, Jan. 30, 2012)
Counsel: [*1] RONALD PHIPPS, PLAINTIFF,
Pro se, Dannemora, NY.
FOR DEFENDANTS: KEITH A. MUSE, ESQ.,
Assistant Attorney General, OF COUNSEL, HON.
ERIC T. SCHNEIDERMAN, Office of the
Attorney General, State of New York, Albany, New
York.
Judges: David E. Peebles, U.S. Magistrate Judge.
Opinion by: David E. Peebles
Opinion
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Ronald Phipps, a New York State
prison inmate, has commenced this action pursuant
to 42 U.S.C. § 1983 alleging the deprivation of his
rights under the United States Constitution.
Construed liberally, plaintiff's complaint alleges
that defendant Dr. Sohail Gillani, a psychiatrist at
the prison facility in which plaintiff was housed at
the relevant times, injected him on multiple
occasions with Risperdal over his objection, in
violation of his constitutional rights.
Currently pending before the court is defendant
Gillani's motion seeking the entry of summary
judgment dismissing plaintiff's claims against him,
both on the procedural basis that he failed to
exhaust available administrative remedies before
commencing suit, and on the merits. Because the
record firmly establishes, and plaintiff has
admitted, that he did not file a grievance
[*2] raising the issues advanced in this action prior
to its commencement, I recommend that
defendant's motion be granted, and plaintiff's
complaint be dismissed.
I. BACKGROUND1
It appears from the scant allegations set forth in his
complaint that plaintiff is a prison inmate currently
being held in the custody of the New York State
Department of Corrections and Community
Supervision ("DOCCS"), and is, and was at the
relevant times, confined in the Clinton Correctional
Facility ("Clinton"), located in Dannemora, New
York. See generally Complaint (Dkt. No. 5); Muse
Decl. Exh. 1 (Dkt. No. 36-4); Gillani Affd. (Dkt.
1 In light of the procedural posture of the case, the following
recitation is derived from the record now before the court, with all
inferences drawn and ambiguities resolved in plaintiff's favor. Terry
v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 301 of 306

Page 2 of 6
No. 36-10) at ¶ 6. Plaintiff alleges that, while at
Clinton, defendant Dr. Sohail Gillani, a psychiatrist
working at Clinton, administered to Phipps over
200 bi-weekly medical injections of Risperdal, over
plaintiff's objection, despite a court order directing
such involuntary injections cease in October 2007.
Complaint (Dkt. No. 5) at [*3] 4. The injections
have allegedly "caused [plaintiff] to feel weak and
dizzy and sick." Id. at 2.
In response, defendant has submitted an affidavit to
the effect that he "had contact with [plaintiff]" on
only nine occasions beginning on June 11, 2010,
and ending on December 23, 2011. Gillani Affd.
(Dkt. No. 36-10) at ¶ 7. In addition, defendant
Gillani states that, although he prescribed bi-
weekly injections of Risperdal for plaintiff, he
never administered the injections, nor was he aware
of "any instance that [plaintiff] refused an injection
during the time period in which [defendant] treated
[plaintiff]." Id. at ¶¶ 12, 13, 15. According to
defendant Gillani, "[a]t no time while [plaintiff]
was under [his] direct care did [he] ever order an
injection to be given to [plaintiff] over his objection
or against his will." Id. at ¶ 17.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on December 30,
2010, with the filing of a pleading styled as an
order to show cause for a temporary restraining
order and seeking preliminary injunctive relief.2
Dkt. No. 1. In that initial pleading, plaintiff named
as defendants Dr. Gillani and the State of New
York. Id. On January 12, 2011, Senior District
[*4] Judge Thomas J. McAvoy issued an order
directing the filing of this original submission as a
complaint, granting plaintiff's application for in
forma pauperis status, denying his motion for a
temporary restraining order, and ordering a
response by the named defendants to plaintiff's
request for injunctive relief. Dkt. No. 4.
Subsequently, following defendants' filing of
response in opposition, Judge McAvoy denied
2 That filing was followed by the submission of a virtually identical
document on January 12, 2011. Dkt. No. 5.
plaintiff's motion for injunctive relief. Dkt. No. 19.
On March 28, 2011, defendant Gillani moved for
dismissal of plaintiff's complaint against him for
failure to state a claim upon which relief may be
granted, and additionally on the basis of qualified
immunity. Dkt. No. 16. Defendant State of New
York later moved, on June 28, 2011, seeking
dismissal of plaintiff's claims against that defendant
upon the basis of the Eleventh Amendment. Dkt.
No. 23. Those motions were addressed in a report
issued by me on January 5, 2011, in which I
recommended that plaintiff's claims against
defendant State of New York be dismissed, but that
defendant Gillani's motion to dismiss be
[*5] denied. Dkt. No. 28. That report and
recommendation was adopted by decision and order
issued by Judge McAvoy on January 30, 2012. Dkt.
No. 29.
Now that discovery in the action has closed,
defendant has moved, by motion filed on October
12, 2012, for summary judgment dismissing
plaintiff's claims against him. In his motion,
defendant Gillani argues that (1) plaintiff has failed
to exhaust his available administrative remedies,
(2) no reasonable factfinder would conclude that he
administered Risperdal injections to the plaintiff
over his objection, and (3) in any event, he is
entitled to qualified immunity from suit. Dkt. No.
36. Plaintiff has not responded in opposition to
defendant's motion, which is now ripe for
determination and has been referred to me for the
issuance of a report and recommendation, pursuant
to 28 U.S.C. § 636(b)(1)(B) and Northern District
of New York Local Rule 72.3(c). Fed. R. Civ. P.
72(b).
III. DISCUSSION
A. Plaintiff's Failure to Oppose Defendant's Motion
The court's local rules require that a party seeking
the entry of summary judgment must submit a
statement of material facts that it contends are
undisputed by the record evidence. N.D.N.Y. L.R.
7.1(a)(3). In [*6] opposition to that motion, the
2013 U.S. Dist. LEXIS 132088, *2
Case 9:23-cv-00098-MJK Document 144 Filed 03/04/26 Page 302 of 306

Page 3 of 6
local rules instruct the non-moving party to respond
to the moving party's statement of material facts by
specifically admitting or denying each of the facts
listed in the moving party's statement. Id. The
purpose underlying this rule is to assist the court in
framing the issues and determining whether there
exist any triable issues of fact that would preclude
the entry of summary judgment. Anderson v.
Dolgencorp of N.Y., Nos. 09-CV-0360, 09-CV-
0363, 2011 U.S. Dist. LEXIS 49658, 2011 WL
1770301, at *1 n.2 (N.D.N.Y. May 9, 2011)
(Sharpe, J.).3 To meaningfully fulfill this purpose, it
is essential for the court to have the benefit of both
the moving party's statement and an opposition
statement from the non-moving party.
In this instance, defendant Gillani has complied
with local rule 7.1(a)(3), providing a statement
setting forth ten facts as to which, he contends,
there is no genuine triable issue. Dkt. No. 36-11.
Plaintiff has failed to respond to that statement. See
generally Docket Sheet.
By its terms, local rule 7.1 provides, in part, that
"[t]he Court shall [*7] deem admitted any properly
supported facts set forth in the Statement of
Material Facts that the opposing party does not
specifically controvert." N.D.N.Y. L.R. 7.1(a)(3)
(emphasis in original). Courts in this district have
routinely enforced this provision in cases where a
non-movant fails to properly respond. See, e.g.,
Elgamil v. Syracuse Univ., No. 99-CV-0611, 2000
U.S. Dist. LEXIS 12598, 2000 WL 1264122, at *1
(N.D.N.Y. Aug. 22, 2000) (McCurn, J.) (listing
cases). Undeniably, pro se litigants are entitled to
some measure of forbearance when defending
against summary judgment motions. Jemzura v.
Public Svc. Comm'n, 961 F. Supp. 406, 415
(N.D.N.Y. 1997) (McAvoy, C.J.). The deference
owed to pro se litigants, however does not extend
to relieving them of the ramifications associated
with the failure to comply with the court's local
rules. Robinson v. Delgado, No. 96-CV-0169, 1998
3 Copies of all unreported decisions cited in this document have been
appended for the convenience of the pro se plaintiff.
U.S. Dist. LEXIS 7903, 1998 WL 278264, at *2
(N.D.N.Y. May 22, 1998) (Pooler, J., adopting
report and recommendation by Hurd, M.J.). Stated
differently, "a pro se litigant is not relieved of his
duty to meet the requirements necessary to defeat a
motion for summary judgment." Latouche v.
Tompkins, No. 09-CV-0308, 2011 U.S. Dist. LEXIS
29743, 2011 WL 1103045, at *1 (N.D.N.Y. Mar.
23, 2011) [*8] (Mordue, C.J.).
Here, because plaintiff was warned of the
consequences of failing to properly respond to
defendants' rule 7.1(a)(3) statement, Dkt. No. 36-1,
and he has failed to do so, I have construed
defendant's facts contained therein as true to the
extent they are supported by accurate record
citations. See, e.g., Latouche, 2011 U.S. Dist.
LEXIS 29743, 2011 WL 1103045, at *1; see also
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.
1996). As to any facts not contained in defendant's
rule 7.1(a)(3) statement, in light of the procedural
posture of this case, the court is "required to resolve
all ambiguities and draw all permissible factual
inferences" in favor of plaintiff. Terry, 336 F.3d at
137.
B. Failure to Exhaust
In his motion, defendant first argues that, because
plaintiff did not file a grievance addressing the
issues now raised in this action before commencing
suit and pursue that grievance through the
administrative grievance procedure available at
Clinton, he is procedurally barred from pursuing
this action. Def.'s Memo of Law (Dkt. No. 36-2) at
6-9.
The Prison Litigation Reform Act of 1996
("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321
(1996), which imposes several restrictions on the
ability of prisoners [*9] to maintain federal civil
rights actions, expressly requires that "[n]o action
shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C.
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Page 4 of 6
§ 1997e(a); see also Woodford v. Ngo, 548 U.S. 81,
84, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006)
("Exhaustion is . . . mandatory. Prisoners must now
exhaust all 'available' remedies[.]"); Hargrove v.
Riley, No. 04-CV-4587, 2007 U.S. Dist. LEXIS
6899, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31,
2007) ("The exhaustion requirement is a mandatory
condition precedent to any suit challenging prison
conditions, including suits brought under Section
1983."). "[T]he PLRA's exhaustion requirement
applies to all inmate suits about prison life, whether
they involve general circumstances or particular
episodes, and whether they allege excessive force
or some other wrong." Porter v. Nussle, 534 U.S.
516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002).
The requirement that inmates exhaust
administrative remedies before filing a lawsuit,
however, is not a jurisdictional requirement.
Richardson v. Goord, 347 F.3d 431, 434 (2d Cir.
2003). Instead, failure to exhaust [*10] is an
affirmative defense under the PLRA, and "inmates
are not required to specifically plead or
demonstrate exhaustion in their complaints."4 Jones
v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L.
Ed. 2d 798 (2007). In the event a defendant
establishes that the inmate-plaintiff failed to
complete the administrative review process prior to
commencing the action, the plaintiff's complaint is
subject to dismissal. See Woodford, 548 U.S. at 93
("[W]e are persuaded that the PLRA exhaustion
requirement requires proper exhaustion."). "Proper
exhaustion" requires a plaintiff to procedurally
exhaust his claims by "compl[ying] with the
system's critical procedural rules." Woodford, 548
U.S. at 95; see also Macias v. Zenk, 495 F.3d 37,
43 (2d Cir. 2007) (citing Woodford).5
4 In this case, defendant Gillani raised failure to exhaust
administrative remedies as a defense in his answer to plaintiff's
complaint. Dkt. No. 30 at ¶ 6.
5 While placing prison officials on notice of a grievance through less
formal channels may constitute claim exhaustion "'in a substantive
sense,'" an inmate plaintiff nonetheless must meet the procedural
requirement of exhausting his available administrative remedies
within the appropriate grievance construct [*11] in order to satisfy
the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380
In New York, prisons inmates are subject to a
three-step Inmate Grievance Program ("IGP")
established by the DOCCS and recognized as an
"available" remedy for purposes of the PLRA.
Mingues v. Nelson, No. 96-CV-5396, 2004 U.S.
Dist. LEXIS 2492, 2004 WL 324898, at *4
(S.D.N.Y. Feb. 20, 2004) (citing N.Y. Corrs. Law §
139 (McKinney's 2003); 7 N.Y.C.C.R. § 701.7;
Rodriguez v. Hahn, 209 F. Supp. 2d 344, 347
(S.D.N.Y. 2002); Mendoza v. Goord, No. 00-CV-
0146, 2002 U.S. Dist. LEXIS 22573, 2002 WL
31654855, at *2 (S.D.N.Y. Nov. 21, 2002)). First, a
written grievance is submitted to the Inmate
Grievance Review Committee ("IGRC") within
twenty-one days of the incident at issue.6 7
N.Y.C.R.R. § 701.5(a). The IGRC, which is
comprised of inmates and facility employees, then
issues a determination regarding the grievance. Id.
§§ 701.4(b), 701.5(b). If an appeal is filed, the
superintendent of the facility next reviews the
IGRC's determination and issues a decision. Id. §
701.5(c). The third level of the process affords the
inmate the right to appeal the superintendent's
ruling to the Central Office Review Committee
("CORC"), [*12] which makes the final
administrative decision. Id. § 701.5(d). Ordinarily,
only upon exhaustion of these three levels of
review may a prisoner seek relief pursuant to
section 1983 in a federal court. Reyes v. Punzal,
206 F. Supp. 2d 431, 432 (W.D.N.Y. 2002) (citing,
inter alia, Sulton v. Greiner, No. 00-CV-0727, 2000
U.S. Dist. LEXIS 17887, 2000 WL 1809284, at *3
(S.D.N.Y. Dec. 11, 2000)).
Defendant's rule 7.1(a)(3) statement asserts, and by
his failure to respond, plaintiff admits, that plaintiff
"never filed a grievance at Clinton Correctional
Facility alleging that Dr. Gillani was prescribing
medication that was being administered over his
objection," and that he "never filed an appeal to the
[CORC] involving the injections of medications
F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
6 The IGP supervisor may waive the grievance timeliness
requirement due to "mitigating circumstances." 7 N.Y.C.R.R. §
701.6(g)(1)(i)(a)-(b).
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Page 5 of 6
being administered by Dr. Gillani or his staff over
his objection." Def.'s L.R. 7.1(a)(3) Statement (Dkt.
No. 36-11) at ¶¶ 1, 2. These assertions are
supported by record evidence including an affidavit
from Christine Gregory, the IGP Supervisor at
Clinton, and Karen R. Bellamy, the Director of the
DOCCS IGP. Gregory Affd. (Dkt. No. 36-8)
[*13] at ¶¶ 5-8; Bellamy Affd. (Dkt. No. 36-9) at
¶¶ 6-7; Bellamy Affd. Exh. A (Dkt. No. 36-9) at 3-
4. In addition, at his deposition plaintiff
acknowledged his failure to exhaust during the
following exchange:
Q. When you were receiving the shots from
2007 until 2010, did you ever go through the
grievance process?
A. No; I'm not a firm believer in the grievance
process, no.
Q. You never field any grievances about the
shots and you didn't want to take them or you
were receiving them involuntarily?
A. No, I filed the lawsuit.
Q. So besides filing the lawsuit, have you filed
anything else in the State prison system
regarding either Dr. Gillani or the shots.
A. No.
Muse Decl. Exh. 4 (Dkt. No. 36-7) at 33.
Although it is clear from the record that plaintiff
failed to avail himself of the administrative
remedies available to him through the IGP, his
failure to do so does not warrant dismissal of
plaintiff's complaint without further inquiry. In a
series of decisions rendered since enactment of the
PLRA, the Second Circuit has prescribed a three-
part test for determining whether dismissal of an
inmate plaintiff's complaint is warranted for failure
to satisfy the PLRA's exhaustion requirement. See,
e.g., [*14] Hemphill v. New York, 380 F.3d 680,
686 (2d Cir. 2004); see also Macias, 495 F.3d at
41. Those decisions instruct that, before dismissing
an action as a result of a plaintiff's failure to
exhaust, a court must first determine whether the
administrative remedies were available to the
plaintiff at the relevant times. Macias, 495 F.3d at
41; Hemphill, 380 F.3d at 686. In the event of a
finding that a remedy existed and was available, the
court must next examine whether the defendant has
forfeited the affirmative defense of non-exhaustion
by failing to properly raise or preserve it, or
whether, through his own actions preventing the
exhaustion of plaintiff's remedies, he should be
estopped from asserting failure to exhaust as a
defense. Id. In the event the exhaustion defense
survives these first two levels of scrutiny, the court
must examine whether the plaintiff has plausibly
alleged special circumstances to justify his failure
to comply with the applicable administrative
procedure requirements. Id.
In this instance, there is no record evidence to
suggest that the IGP was not fully available to the
plaintiff in this matter. In addition, plaintiff
admitted at his deposition that the failure [*15] to
exhaust remedies was his decision, and not the
product of any interference or special
circumstances that would justify excusing him from
the PLRA's exhaustion requirement. See Muse
Decl. Exh. 4 (Dkt. No. 36-7) at 33 (testifying that
he did not use the grievance procedure to complain
about receiving shots between 2007 and 2010
because he is "not a firm believer in the grievance
process"). Based upon this evidence, which Phipps
has not disputed, I conclude that this action is
subject to dismissal based on plaintiff's failure to
exhaust his available administrative remedies
before commencing this suit.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's complaint in this action alleges that
defendant Gillani, the sole remaining defendant in
the action, involuntarily subjected him to injections
of Risperdal in violation of his substantive due
process rights under the Fourteenth Amendment.
The record firmly discloses, however, that the
plaintiff did not file a grievance and pursue that
grievance to completion, pursuant to the established
DOCCS IGP prior to commencing this action, as
required under 42 U.S.C. § 1997e(a). Accordingly,
it is hereby respectfully
RECOMMENDED that defendant's motion for
[*16] summary judgment (Dkt. No. 36) be
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Page 6 of 6
GRANTED, and that plaintiff's complaint in this
action be DISMISSED for failure to exhaust
available administrative remedies before
commencing suit.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the
parties may lodge written objections to the
foregoing report. Such objections must be filed
with the clerk of the court within FOURTEEN days
of service of this report. FAILURE TO SO
OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette,
984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court
serve a copy of this report and recommendation
upon the parties in accordance with this court's
local rules.
Dated: July 23, 2013
Syracuse, New York
/s/ David E. Peebles
David E. Peebles
U.S. Magistrate Judge
End of Document
2013 U.S. Dist. LEXIS 132088, *16
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